Professional Documents
Culture Documents
Reprinted in:
I i
Sharon
and Joachim
Hruschka, eds.,
M Byrd
n anonymous
reviewer-undoubtedly
Friedrich Bouterwek - of
Kant
and
Law
(Aldershot:
Ashgate,
20144.
Kant's Metaphysical Elements 2006),
01 Justice
(hereafter "ME]") complained
Announcements
International Kelly Prize in French Political Thought. The Conference for the
Study of Political Thought (CSPT) announces the George Armstrong Kelly
Prize. It will be awarded for the best journal article, or paper of similar length
and scope, published in 1994 on the history of 18th- and/or 19th-century French
language political thought (including political theory, philosophy, etc.). This
is an international prize: entries will be accepted from any country, although
the articles must be in French, German, English, or Spanish.
Last years prize, when the contest was for German political thought, went
to Kenneth Westphal, Kant on the State, Law, and Obedience to Authority,
Journal of Philosophical Research 17 (1992): 383426.
Individual authors are encouraged to submit their own work for
consideration for the prize. Others are invited to nominate possible candidates
for the prize. In addition to journal articles and articles in multi-authored
collections, the prize committee encourages submissions of single-authored
collections of articles, from which a winner could be selected.
The deadline for submissions of articles for the prize is November 30, 1995.
Four copies of articles in English, French, or Spanish should be sent to Prof.
John Christian Laursen, Department of Political Science, University of
California, Riverside, CA 92507-0118. Four copies of articles in German
should be sent to Prof. Martyn P. Thompson, Department of Political Science,
Tulane University, New Orleans, LA 70118-5698. The winner of the prize,
which includes a cash grant, will be announced at the annual meeting of the
CSPT.
(...)
541
[541]
I Mi
384
K E N N ETH R. W E STP H A L
about Kant's view of the duty to obey political authority. The reviewer was
astounded
that the mere idea of sovereignty should necessitate me to obey as my
lord anyone who has imposed himself upon me as a lord, without my
asking who has given him the right to issue commands to me. (MEl 37 1) 1
Kant fully grasped the objection; h e restated i t and referred t o the section of
MEJ where he argued for strict obedience (49 37 1 -372). Kant replied that
his view may be paradoxical, but maintained that subjects owe strict obedi
ence to their ruler and denied any right to rebel:
If the people were to hold that they were justified in using violence
against a constitution, however defective it might be, and against the
supreme authority, they would be supposing that they had a right to put
violence as the supreme prescriptive act of legislation in the place of
every right and law. (MEl 372)
Both the objection and Kant's reply concem obedience to actual holders of
state power. Kant apparently eschews Thrasymachus's strategy of claiming
that someone is only a ruler when ruling well, so that a putative ruler who
did something illegitimate is not, strictly, sovereign so that forcible resis
tance to that person is not, strictly, revolt.2
The contrast between the apparently egalitarian spirit of Kant's concep
tion of persons as ends who autonomously legislate for themselves and his
apparently Hobbesian rejection of the right of revolution has been widely
discussed.3 The predominant opinion among commentators is that the strict
denial of the right of revolution found in "On the Proverb, That May Be True
in Theory, but it is of no Practical Use" ( 1 793), supplemented in "To Per
petual Peace: A Phi1osophical Sketch" ( 1 795), and officially defended in
MEl ( 1 797), is balanced by Kant's revolutionary sympathies expressed in
"Idea for a Universal History with a Cosmopolitan Intent" ( 1 7 84), in Reli
gion within the Limits of Reason Alone ( 1 793), and in The Struggle of the
Faculties ( 1 798). Most prominently, Lewis White Beck noticed only one
remark in MEl that excuses, though not justifies, revolution (see p. 339
below). He contends that Kant's position is inconsistent, since it contains
both "the teleology of seeking to bring about the rule of law under a repub
l ican constitution . . . and a formalism of obedience to the powers that be. "4
1 aim to show that the real tension in Kant's thought is not simply the
compatibility of Kant's justification of absolute obedience to law and to
political authority with his sympathy for the French Revolution, or even with
his general republican principles. The crucial issue is much more fundamental :
I s Kant's defense of absolute obedience consistent with his own principle of
legitimate law, that legitimate law is compatible with the Categorical Impera
tive? Resolving this apparent inconsistency also resolves the subsidiary
inconsistencies that have been debated in the literature.
385
I argue that Kant's legal principles contain two distinct grounds of obIi
gation to obey poIitical authority. One ground Iies in Kant's unconditional
metaphysical princples of law. on these principles there is only a duty to obey
legitimate law or fully legitimate authorities. Another ground Iies in Kant's
moral-pragmatic principles concerning the moral value of membership in the
state. Kant beIieves that the state helps improve one's character by counter-bal
ancing one's immoral inc1inations. I argue that this is Kant's ultimate ground
for obedience to defacto, imperfect1y legitimate states. on this ground, the duty
to obey an actual state is conditional. Kant's strong statements about the duty to
obey actual states is explained by the ease with which he thinks extant states
meet the relevant condition. I also argue that the apparent ambiguities in Kant's
treatment of obedience and resistance point to some crucial shortcomings of
Kant's views on the division of govemmental powers and on judical compe
tence. These shortcomings hamper his analysis of the duty to obey the state.
My case involves demonstrating several new points. First, I show that
each of the three supposedly anti-revolutionary texts appear to contain a
tension within Kant's principles of law between his view that subjects must
obey their rulers and his express principle of legitimate law : positive law
must accord with the Categorical Imperative, whose poIitical illustration is
the social contract ( II, III, IV, VI). Second, 1 show that this tension is
alleviated in each of these texts because Kant's view of the duty to obey
estabIished authority is carefully circumscribed. A close reading of Kant's
metaphysical arguments in each of these texts for obedience to law or to
political authority shows that he restricts dutiful obedience to obeying legit
imate law or legitimate rulers ( II, III, VII) . Kant's strategy is much closer
to Thrasymacus's than has been recognized.5 Third, 1 show that Kant's
official argument against the right of rebellion in MEJ confIates the very
distinction among governmental powers that constitutes the central signifi
cance of his avowed repubIicanism. This conflation leads Kant to espouse
what must in his own terms be called despotism ( IV-VI) . Another factor
that led Kant to espouse despotism is his propounding the "metaphysical
elements" of law without discussing any specific institutions (V) . 1 also
show that Kant expresses decided sympathy for Iimits on, if not resistance
to, executive authority in MEJ, far more than has been recognized (VII) . The
tension between these two aspects of Kant's principles of law, his principle of
legitimate law and his principle of obedience to authority, raises the important
issue of determining whether a law is legitimate. 1 then argue, fourth, that Kant
fails to address this issue due to an unnecessarily restricted conception of
judicial competence (VIII). 1 then consider some of Kant's Reflexionen that
suggest a remedy for this defect (IX). In conc1usion 1 show, fifth, that Kant's
ultimate and sole grounds for obedience to actual, imperfect states are not
those found in his unconditional metaphysical legal principles but rather are
indirect, pragmatic, conditional grounds based on the moral purposes
served by membership in the state (X).
386
KE N N ETH R. W E STPHAL
387
which he criticized the right of revolution and apparently (to the editor, at
least) withdrew his support from the developments in France.9 However,
this essay contains the tension mentioned at the outset between Kant's
criterion of the legitimacy of law and his defense of the absolute obligation
to obey established authority, along with Kant's strict qualification of the
duty to obey the law.
In this essay Kant's criterion for the legitimacy of law is that legitimate
law must be a function of the general will, modeled by the social contract.
No law is legitimate that could not be agreed to by the unified wi11 of the
people (T&P 297, 299) . 10 Kant even claims that this criterion is infallible
(T&P 299). Only the nation's leader is authorized to judge by this criterion
(T&P 298), and to enforce those judgments, though citizens are capable of
using this criterion of the legitimacy of law and are authorized to express
their judgments publicly (T&P 304). Most succinctly, Kant states:
The general principle by which a people may judge, though merely
negatively, as to whether the supreme legislature has not decreed with
the best of intentions is contained in this proposition: Whatever a
people cannot decree for itself cannot be decreed for it by the legisla
tor. (T&P 304)
Citizens cannot, however, enforce their judgments, because that is a right
they rescinded by entering civil society (T&P 300).
Kant's argument against the right of revolution in "Theory and Practice"
is the model for the argument he offers later in MEJ. It contains two main
grounds. First, the ruler wields supreme coercive authority and is not sub
ject to coercion (T&P 29 1). Second, in a dispute between the leader and the
citizens there could be no authorized third party to judge the dispute (T&P
300, 303). In Kant's own words:
[T]he power of the nation that makes law effective is also unopposable,
and there is no rightfully constituted commonwealth without the power
to put down a11 intemal resistance, for such resistance would have to
derive from a maxim that, if made universal, would destroy a11 civil
constitutions, thus annihilating the only state in which men can possess
rights.
From this it fo11ows that a11 resistance to the supreme legislative power,
aU incitement of subjects actively to express discontent, a11 revolt that
breaks forth into rebeUion, is the highest and most punishable crime in
a commonwealth, for it destroys its foundation. And this prohibition is
absolute, so that even if that power or its agent, the nation's leader, may
have broken the original contract, thereby forfeiting in the subject's
eyes the right to be legislator, since he has authvrized the govemment
to proceed in a thoroughly brutal (tyrannical) fashion, the citizen is
nonetheless not to resist him in any way whatsoever. (T&P 299)
388
Only ifit is not contradictory to believe that an entire people can agree
to such a law is it compatible with right [Recht] , however much pain it
may bring. Now if a public law can receive such agreement, it follows
that it is irreproachable in relation to the right and thus carries with
it the authority to coerce and, at the same time, the prohibition
against actively resisting the will of the legislator. (T&P 299; emphases
added.)
According to this statement, a law is legitimate (by being "compatible with
right") only if it is conceivable that the entire populace can agree to it. The
important point is Kant's suggestion that only if ("and th".:.s"; "so ist damit")
a law meets this requirement is its coercive enforcement legitimate and does
it allow the prohibition against resisting that law. It is not legitimate to
enforce illegitimate law, and it is not (on grounds of these principles) for
bidden actively to resist or even to revo1t against the illegitimate will of an
unjust legislator! What is not forbidden, in Kant's theory, is (at least) per
missible. Thus by this reasoning resistance against il1egitimate law is per
missible. Kant's prohibition of the right to rebel, expressed so graphically
subsequently, is directly counter-balanced by his principle of legitimate
law: The passage just quoted only prohibits active resistance to legitimate
law ! Kant's precisely qualified statement has been over1ooked in the heat of
his subsequent admonition. 1 3
Kant here appears to be of two minds on the issue of whether resistance
to the ruler is ever legitimate. On the one hand, the legitimacy of law is a
condition for the legitimacy of its enforcement. On the other hand, supreme
state power is required for the exercise of state authority, which is a neces
sary condition for the existence of a state, and the existence of a state is a
389
ingly; and therefore, a supreme power who uses only prudential rules
m a y and must keep them in order. This desperate step [ r
zweifelungssprung] (salto mortale) is of such a nature that when once
the issue become one of might, not of right, the people may [drfte]
also seek [versuchen] their own power and thus render all lawful con
stitutions insecure. If there is nothing that immediately commands
rational respect (such as the rights of men), all influences on men's
wi11s [ Willkr] are incapable of restraining their freedom. But when in
addition to benevolence the right speaks out loudly, then human nature
wi11 not show itself so debased as not to listen reverently to its voice.
(T&P 306)
Nota Bene: Once the issue becomes one of might, the people may exercise
their own power ! It is unclear whether Kant's "may" expresses merely a
prediction or a normative permission. It expresses at least a prediction; his
next sentence indicates his belief that no regime could restrain human free
dom unless it commanded "rational respect" by, e.g. , respecting human
390
KE N N ETH R. W E STPHAL
rights. Surely this is the only example of what, on Kant's view, could command
the rational respect of citizens. However, Kant's express contrast between
might and right suggests (but only suggests) that he expresses a permission:
once the issue is one of might, there is no legitimate prohibition of revolt.
Notice also that Kant speaks of the insecurity of a constitution, when the
issue is resistance to a person-a ruler who has enacted extra-constitutional
measures. Had he distinguished the officer from the office, Kant might have
made a step toward recognizing the constitution as sovereign. This might
have allowed him to recognize the people as protecting the constitution
against tyranny. 1 return to this prospect in connection with MEJ (VIII). In
the final section (X) 1 return to the issue of whether people, due to their
head-strong "hardheartedness," require political control . This is a funda
mental issue in the moral-pragmatic dimension of Kant's political phi1osophy.
III.Kaot's Views 00 Obedieoce to Law io " PerpetuaJ Peace."
391
392
sively supreme power has no need to keep his maxims secret" (PP 385).n
By this reasoning, the first Principle of Publicity is a necessary condition
for the rightness of a political maxim, but it is not a sufficient condition of
that rightness. (Kant uses the terms "negative" and "affirmative" in connec
tion with each of these principles; this appears to be his way of putting this
distinction.) However, as Kant indicates, subjects are prohibited from revolt
by the first Principle of Pub1icity because the ruIer holds supreme power.
The ruIer can thus say whatever he pIeases and no one can threaten him; but
subjects cannot say whatever pIeases them, because the ruler can suppress
them with state power. Kant thus shows that the first PrincipIe of Publicity
cannot be a Kantian principIe of right at a11, not even negativeIy (as a
necessary condition), for state power could be unIeashed against uttereran
ces of pIain truths-even arithmetic truths-and that would show nothing
about their falsehood ! Kant insists that might aIone does not make right, so
the first principle cannot be meant seriously. It would be evident to an
informed reader that this principle is untenable on Kantian principles, even
principIes stated in this essay. This makes it hard not to suppose that he
made his first, fallacious argument for the benefit of the censors and to
throw his moral authority against the revolutionary inclinations of insuffi
ciently subtle (and hence insufficiently principIed) readers.18
In the penuItimate paragraph of his essay, with direct reference to the
insufficiency of the first PrincipIe of Pub1icity as a test of rightness, Kant
introduces a second "affirmative principle of pub1ic right:"
AU maxims that require publicity (in order not to fail of their own end)
agree with both politics and right. (PP 3 86) 19
He claims that this is a genuine test on the Iegitimacy of maxims because if
publicity is required to carry out a maxim, that maxim and its execution
must rely on and contribute to the development of mutual public trust (PP
386) . Having said this, he postponed further discussion of this principle.
This principle has something in common with the Categorical Imperative,
though instead of a complex practical contradiction between an individual 's
intention and its universal counterpart, it supposes that there would be an
actual expression of opposition (perhaps even outrage) if someone were to
express a po1itical maxim that infringed on some person's or group's rights.
Unfortunately, this criterion won't distinguish between legitimate com
plaint and expressions of bigotry or paranoia. It is unclear whether Kant 's
"affirmative" principIe expresses a necessary or a sufficient condition for
the legitimacy of po1itical maxims. Kant's expIanation of the principle
suggests that he intends it as a necessary condition. He states that if the only
means to carry out political maxims are pub1ic, then those maxims must
conform to the rights of the pub1ic (ibid.) . (Kant uses the modal term "onIy"
twice; the second time with emphasis.) The contrast between the two prin
ciples also suggests that Kant intends the second principIe to be a necessary
393
condition. The first principIe mereIy stipuIates that Iegitimate politicaI max
ims be consistent with publicity; the second stipuIates that politicaI maxims
must require publicity in order to succeed, if they are to be legitimate. This
contrast between the two formuIae wouId Iose its significance if the second
principIe did not express a necessary condition for the legitimacy of politi
caI maxims.
Notice that the second PrincpIe of Publicity Ieaves opeu the tantalizing
possibi1ity that rebe11ion against tyranny is Iegitimate, because the uItimate
success of such a rebelliou wouId require publicity and public agreement in
the aim of the revoIt! If Kant intends this second affirmative principIe to be
a necessary condition of the Iegitimacy of politicaI maxims, then it has
another very interesting implication: a tyrant's policy to suppress rebellion
wouId not be, by this soIe affirmative principIe, Iegitimate ! Because a tyrant
hoIds supreme coercive power, his or her maxim to supress resistance or
rebellion does not require publicity in order to succeed. If it states a neces
sary condition, Kant's second PrincipIe of Publicity stipuIates that maxims
are Iegitimate onIy if they require pubIicity for their success. Hence the
tyrant's maxim is illegitimate.2o It is difficult to determine here the extent
to which Kant suggested what he dare not state explicitly, and the extent to
which he hadu't fully deveIoped his views. NevertheIess, he must have been
aware of the impIications of this second PrincipIe of PubIicity for the issue
of revolt, since he expressIy introduced it to remedy the admitted inade
quacy of the first PriucipIe of Publicity. Kant onIy used the first principIe to
argue agaiust the right to revoIt; Kant retracted the first principIe because
anyone wieIding superior power can dispense with publicity. Retracting the
first principIe in this way aIso retracts any argument based on it. Thus Kant
must be taken to retract his own earlier argument in "PerpetuaI Peace"
against the right to revoIt. In this penuItimate paragraph of his essay Kant
may even suggest the illegitimacy of suppressing revoIt against illegitimate
Iaw or i11egitimate ride, and he may even suggest the Iegitimacy of revolt
against illegitimate Iaw or illegitimate ruIe.
IV. Kant's Views on Government in
the Metaphysical Elements 01 Justice
394
395
Kant's use of the term "government" here seems Ioose. His remarks bear on
the executive administration; sureIy some branch of government wouId
IegisIate. However, the main point of present concem is clear: Kant hoIds
that the mIer is not to IegisIate. A republican mler is a chief executive only;
a mler who both Iegislates and executes Iaw is a despot. This shows that
Kant's distinction of governmentaI powers must involve a distinction be
tween office holders, and not merely a distinction between officiaI func
tions. There is further terminologicaI evidence that Kant distinguishes
between officers, and not merely between officiaI functions that might be
represented by distinct moraI persons but instantiated by one officia1. Kant
states that "regarded as a moraI person the mler [Regent] is called director
[Direktorum]" (49 3 1 6) . Note that Kant did not say (above) that the sover
eign cannot at the same time be the Direktorum, but rather cannot be the
Regent. Kant's distinction among officers thus concerns actuaI, not moraI,
persons. Second, the German phrase translated by Ladd as "at the same
time" is not "zu derselben Zeit" or "gleiehzeitig," but rather "zugleieh," a
term that could in some contexts concem time, but more proper1y concerns
combination. Kant's next sentence gives good reason to interpret "nieht
zugleieh" as a rejection of combination of offices in one office holder, for
Kant states:
The sovereign [Souvertin] can take his authority from the mler [Re
gent], depose him, or reform his administration . . . (MEJ 49 3 17)
While this statement could be contorted to fit a division of function' view,
contending that Kant here discusses moraI rather than physicaI persons, it
is far more naturally read as requiring distinct officiaIs, one controlling the
other. This interpretation is strengthened by a paralleI discussion in the
subsequent paragraph. There Kant says
Finally, neither the sovereign nor the mler can judge; they can only
appoint judges as magistrates. (MEJ 49 3 1 7)
Here the distinction between officiaIs, and not merely between functions, is
quite explicit, and Kant's transitionaI "finally" underscores the paralleI with
his preceding discussion of the distinction between the Iegislator and the
chief executive. Kant's tripartite distinction among the moraI persons who
form the state requires an actuaI distinction among the officiaIs who exer
cise these three distinct functions. 2 3
Kant declares that the proper principle of the sovereign Iegislative au
thority is that "Iegislative authority can be attributed only to the united Will
of the people" (46 3 1 3; el 49 G.R.fA 3 19, 320; quoted below, p. 398). He
further follows Rousseau in arguing that it is impossible for anyone to
prescribe an injustice to oneself, so that "only the united and consenting
Will of all-that is, a general united Will of the people by which each
decides the same for all and all decide the same for each-can Iegislate"
396
KE N N ETH R. W E STPHAL
UnfortunateIy, and significantly for his views on the duty to obey politi
cal authority, Kant elsewhere in MEJ muddles together the governmental
powers he had carefully distinguished. In the preceding section it was
shown that Kant uses the term "ruIer" to designate the chief executive, who
has no legisIative power. However, in his reply to Bouterwek Kant speaks of
the ruIer as holding "supreme commanding and legislative authority . . . " (MEJ
37 1 ; emphasis added. ) . This statement flatly contradicts Kant's views about
the separation of governmentaI powers . In this passage Kant ascribes a
legislative function to the ruIer-to the executive-in direct opposition to
his clear assertion that onIy the sovereign peopIe can legisIate (if through
their legitimate representatives) . This statement thus violates his own defi
nition of "republicanism" and his strictures against the usurpation of powers
and against annexation of the Iaw. Kant at least thrice again confuses the
leg islative authority of the people with the legislative activity of a
'sovereign' ruIer. He states that "What the people (the mass of subjects)
cannot decide with regard to themselves or their fellows also cannot be
decided by the sovereign regarding them" (49 G.R.fD 329) . S imilarly, he
says that the "sovereign" cannot change the form of government at will
because "the people" may not want the new form (52 340) . Most bIatant
is Kant's discussion of the following question:
Can the sovereign [Beherrscher] be regarded as the supreme proprietor
(of the land), or must he be regarded only as the person who exercises
397
tical1y but conceptual1y. Once the three authorities are exercised by one and
the same officia1, then there is not even a distinction of reason that prevents
1egis1ation from being annexed to the chief executive. The abstractness of
Kant's "metaphysical e1ements" thus thwarts his avowed republicanism.25
These two re1ated points indicate a basic point at which Kant had not
adequate1y worked out his constitutiona1 theory. These shortcomings bear
directly on the significance and adequacy of Kant's arguments for obedi
ence to 1aw and against rebellion.
VI. Kant's Defense of Obedience to the State in
the Metaphysical Elements of Justice
398
KE N N ETH R. WESTPHAL
(MEJ
399
executive action, yet this lies beyond the bounds of the legitimate powers
of the legislative sovereign. Thus the people, who are the sovereign legisla
tor, cannot restrain their chief executive. The supremacy Kant grants to the
ruler in effect places the ruler above the law-in flat contradiction to his
explicit claim, quoted earlier (p. 394), that the ruler is subject to the law
because no effective sentence could be passed against a ruler issuing extra
legal ordinances because there is, by this argument, no authoritative power
to issue such a sentence. In effect Kant's argument against sedition and
revolution grants the ruler a supreme legislative function because the ruler
could enforce whatever laws he will. Kant apparent1y fails to see this impli
cation of his argument. He only stresses that a legislative act to restrict the
executive involves the legislator acting in an executive capacity, which
violates the separation of powers and involves a capacity superior to the
executive, in which case the "legislator" is the executive, not the executive
(49 G.R.fA 3 1 9) . Kant detests the "despotism" such legislative action
involves, while ignoring the despotism his argument generates for the ex
ecutive.28 These implications utterly subvert Kant's division of powers.
Kant's argument against revolt retreats from a republican notion of govem
mental authority divided among separate branches of govemment back to
an absolutist notion of sovereignty as a supreme executive and legislative
authority exercised by a single individual; a combination which, we have
seen, Kant himself calls "despotic." Kant did not resolve this ambiguity in
his concept of sovereignty, as witnessed by his remark that the only "natu
ral" social division is that between sovereign and people (49 G.R.fD
329) ! 29
VII. Kant 's Qualifications of the Duty to Obey Authority
in the
Having seen how Kant's defence of the absolute duty to obey legal
authority conflates his distinction among govemmental authorities, it is
important to see that in MEJ his reasoning and principled statements once
again limit dutiful obedience to obeying legitimate law. These important
qualifications take several forms. One consists in Kant 's statements of the
limits of executive authority (VIIA) . Another lies in Kant 's crucial quali
fication on the limits of dutiful obedience found in his reply to Bouterwek
(VIIB) . A final qualification lies in Kant's moral-pragmatic grounds for
obeying actual states (X) .
A
In a note Kant grants that a people may have "at least some excuse for
forcibly [dethroning a monarch] by appealing to the right of necessity . . . "
(49 G.R.fA 32 1n) . This is the only statement that Beck finds in MEJ that
in any way admits a right to rebel1ion. He claims that "otherwise Kant's
denial of the right of revolution is as firm and clear as his express sympathy
400
KE N N ETH R. WESTPHAL
for the French RevoIution. "30 As Seebolun points out, however, littIe em
phasis shouId be pIaced on Kant's note, since eIsewhere in MEJ he repudi
ates the validity of alleged rights of necessity (MEJ 235-236) , whi1e in
"Theory and Practice" he discusses the right of necessity in connection with
revoIution, rejecting it as an absurdity (T&P 300) . 3 1
However, there are other, fully reliabIe passages in MEJ that indicate
Kant's avowed sympathy for the principIes of the French RevoIution. Kant
says of executive authority that it "resides in the person of the ruIer (in
conformity to law [GesetzD . . . " (45 3 1 3 ; emphasis added) . Stronger yet,
and directly on the topic of the limits of executive power, Kant states that
The sovereign [Souveran] can take his authority from the ruIer [Re
gent], depose him, or reform his administration . . . (MEJ 49 3 1 7)
The context makes clear that in speaking of the "sovereign" Kant is speak
ing of the sovereign peopIe, for he contrasts "sovereign" with "ruIer" and
there is no party mentioned by Kant other than the people to whom sover
eignty couId be ascribed.32 This is in perfect keeping with his declarations
(cited earlier) that sovereign authority lies sol el y with the peopIe. (Recall
that two of these statements occur in the very passage in which Kant argues
against the right to rebeI [49 G.R.fA 3 1 9, 320] . ) This remark is the closest
Kant comes in MEJ to mentioning impeachment, the Iegitimacy of which
was Iong established in English Iaw. Kant's remark is allusive, but appar
ently approving, for he speaks not mereIy of reforming the executive, but
of deposing the chief executive. There is little doubt, of course, that were
Kant to work out the right and process of impeachment he wouId have the
peopIe exercising their sovereign authority through their IegisIative repre
sentatives.
These remarks accord with Kant's remarks about the Iesser powers es
tablished by limited constitutions, in which subjects can oppose their
administration's measures through their representatives. He denies that
such limits justify active resistance against the executive, but he acknowI
edges that they enabIe a distinct "negative resistance" in the form of
refusing to compIy with the executive 's demands. lndeed, he thinks that
such acts of non-compliance indicate the heaIth of the republic (49
G.R.fA 322) .
B
At the outset of this paper 1 quoted a direct deniaI of the right of revoIu
tion from Kant 's repIy to Bouterwek. lt is cruciaI to see that in this same
repIy, Kant again limits the duty to obey the Iaw to obeying Iegitimate Iaw.
Moreover, he addresses this topic in explicit reference to his argument
against revolt in 49. Thus this passage qualifies Kant's argument in the
body of MEJ. Just before the statement 1 quoted at the outset Kant states:
40 1
[A] categorical imperative says: "Obey the suzerain (in everything that
does not conflict with internal morality) who has authority oyer you ! ".
(ME.l 37 1)33
Kant says the Categorical Imperative commands obedience only insofar as
the ruler 's edicts do "not conf1ict with internal morality." What does "inter
nal morality" mean?34 In an unpublished note Kant specifies certain un
likely cases of justifiable revolt:
Force, which does not presuppose a judgment having the validity of
law is against the law consequent1y [the people] cannot rebel except in
the cases which cannot at a11 come forward in a civil union, e.g., the
enforcement of a religion, compulsion to unnatural sins, assassination,
etc., etc. (Reflexion 805 1 XIX 594-5, lines 32-2)35
Beck notes that Kant trails off into etcetera. What is the scope of this
etcetera? Kant says little else about it, but what he does say-in print-is
revealing. According to the Critique 01 Practical Reason ( 1 788) one is not
obligated to make false testimony even by royal command.36 Kant claims
that the example of someone who refuses to lie even under royal command
would be an inspiring example to young minds, encouraging them to aspire
to virtue. The prohibition on lying fo11ows from Kant's main moral princi
pIe, the Categorical Imperative. Thus the scope of this "etcetera" would
seem to be quite large, including the whole domain of moral action. In brief,
Kant's view seems to be that no ruler can legitimately demand immoral
action.
Ref1ection on the structure of Kant's moral theory confirms this broad
scope. Kant distinguishes between principles of justice and principles of
virtue as follows. Principles of justice concem overt behavior, to which one
may be coerced. Principles of virtue concem motives, intemal mental
events for which no coercion is possible (ME.l 2 1 8-22 1). Kant's view of the
relation between the Categorical Imperative and the sole morally worthy
motive of respect for law insures that it is not possible to have a moral
motive to perform an immoral act. These features of Kant's view strongly
suggest that "inner morality" concems morally worthy motives. This inter
pretation is further supported by Kant's only other use of the phrase in this
text. In the Introduction to ME.l, Kant explains that although no relation
between right and duty can be determined in our relation to God, the concept
of our moral relation to God
is fruitful from an internal, practical point of view in relation to our
selves and to maxims of intemal morality, inasmuch as our whole
immanent (accomplishable) duty consists of this purely represented
relationship. (ME.l 24 1 -42)37
Our relation to God, according to the second Critique, primarily concems
402
our virtue, that is, the moral worthiness of our motives. Hence the last
phrase of Kant's injunction, to do nothing that conflicts with "inner moral
ity," even if commanded by one's suzerain, can only mean 'does not conflict
with the Categorical Imperative. '38 It is axiomatic in Kant's politics that
legitimate legislation is commensurable with the Categorical Imperative.39
Thus the extent of dutiful obedience is identical with the extent of legitimate
positive law.40 In the Introduction to MEJ Kant states directly : "An action
is allowed (licitum) if it is not opposed to obligation . . . " (MEJ 222).
Therefore it is permissible to disobey rulers or laws that lack legitimacy.
Beyond the bounds of legitimate power or law, there is no duty to obey the
state ! This is not a right to rebel, but it is a very stringent qualification on
the obligation to obey.4 1
The difference between Kant's two views i n MEJ, a strong denial o f the
right to rebel and a principled statement of the limits of dutiful obedience
to law, should not be viewed simply as a slip of the pen or as an unsound
argument for despotism. Severe censorship was exercised in Prussia since
the appointment of Johann Christoph Wollner as minister of cultural and
educational affairs in 1 786. The Prussian government enforced political and
religious orthodoxy among Enlightenrnent intellectuals, especially in their
popular publications. What scholars published for each other was of less
concern. The pressures of censorship caught up with Kant on October 1 2,
1 794; he vowed not to publicize those of his (specifically religious) opin
ions that were censured, though also not to print what he did not believe.42
A s mentioned earlier, Kant was under great pressure to avoid having ME!
censored, for if W6l1ner censored it, nothing could have prevented him from
censoring whatever he pleased. This would have threatened the very free
dom of thought so cherished by Kant. In the second edition of MEJ ( 1 798),
after quoting the reviewer 's objection, Kant directly alluded to the censors :
Now, admitting that there is a paradox here, 1 hope that, when the view
is examined more closely, it will at least not be convicted of being
heterodox. (MEJ 37 1)
Kant indicates that he needs to preserve a veneer of orthodoxy, and he
appears to have made use of the device the censors countenanced: the
contrast between popular prose and precise academic principle. According
to Kant's unconditional metaphysical principles in MEJ, there is only a duty
to obey legitimate law or legitimate authority. The duty to obey established
law or political authority is thus absolute only in the case of a fully legiti
mate, that is, ideal state !43
It is tempting in this light to read Kant's response to the charge of
heterodoxy in another way. Kant alludes to Wollner 's censors here, but is
that all? Who has accused him of being heterodox? Bouterwek. Who calls
for closer examination of his view? Kant. What does he say upon close
examination?
403
[A] categorical imperative says: "Obey the suzerain (in everything that
does not conflict with intemal morality) who has authority oyer you ! "
(ME! 37 1)
What sort of heterodoxy is rebuUed by this remark? On c\ose reading, this
remark rebuts Bouterwek's charge that Kant has betrayed liberal political
principles. The remark limits dutiful obedience to obeying "everything"
that does not conflict with the Categorical Imperative, and this qualification
is found only upon very c\ose examination of Kant's texts and doctrines.
Compatibility with the Categorical Imperative is not only a necessary con
dition for an action being moral, it is also Kant's sine qua non for the
legitimacy of positive law.44 Hence this crucial qualifier conceming "inter
nal morality" indicates that Kant restricts the absolute duty to obey to
obeying legitimate law. When properly understood, Kant's important par
enthetical qualification shows that his position in ME! is consistent with his
position in the Religion. There he twice endorses the principle that 'We
ought to obey God rather than men. ' Kant interprets this saying to mean the
following:
[W]hen men command anything which in itself is evi1 (directly op
posed to the law of morality) we dare not, and ought not, obey them.
(Religion 90n2, ef 1 42nfAk VI 99n, ef 1 54n)45
Kant thus espouses the general principle that one ought not obey a ruler 's
commands to perform immoral actions.46
VIII. A Limitation of Kant's Constitutional Theory
in the Metaphysical Elements 01 Justice
404
K E N N ETH R . WESTPHAL
405
already radical in defending the rule of law against the 1ikes of Friedrich the
Great's arbitrary, if sometimes enlightened, despotism and in defending
freedom of political expression against both him and Friedrich Wilhelm n's
vindictive censors. Kant apparently expressed himself unequivocally on
this issue in ME!:
[T]he constitution itse1f cannot contain any article that would allow for
some authority in the state that could resist or restrain the chief magis
trate in cases in which he violates the constitutional laws. (ME! 49
G.R./A 3 19)50
Kant 's reason for this, as before, is that only the chief executive wields
supreme coercive force. However, Kant 's remarks about the competence of
the courts indicate that he didn 't consider a court as a candidate for an office
that might "restrict or restrain" the chief executive 's extra-constitutional
initiatives.51 Moreover, this unqualified statement stands in direct contra
diction with his equally unqualified earlier statement concerning impeach
ment, that the sovereign can withdraw the chief executive's authority,
depose him, or reform the executive administraton (49 3 1 7) . 52 Apparently
Kant was of two minds on this topic. In this connection it is worth recalling
the caveat at the end of Kant's Preface to ME!:
Toward the end of the book, I have worked out some of the sections in
less detail than might be expected in comparison to the earlier ones.
This is partly because it seemed to me that they could be easily inferred
from the ear1ier statements and partly because the subjects of the later
parts (concerning pub1ic law) are just now under so much discussion
and are yet so important that they amply justify delaying for a while the
making of any decisive pronouncements. (ME! 209)
This statement contrasts the detail and definitiveness of the first and second
parts of ME!; it does not allow emphasizing earlier oyer later parts of the
second part on public law, and so does not allow stressing Kant's tripartite
division of powers oyer his absolutist rejection of resistance. How obvious
are the implications of Kant's doctrine of private law for his doctrine of
public law is debatable, especially on the point here at issue, the conf1ict
between the republican and the despotic elements in Kant's doctrine of
public law. This much is certain. Kant claims that his doctrine of public law
is not given definitive expression in ME!.
Kant is much closer to a consistent position about obedience, resistance,
and the limits of executive authority than may at first appear. It would be
consistent to exclude any right of rebellion, or perhaps even resistance,
against a proper1y constituted republic containing a division of powers with
a system of checks and balances, where revolt against the whole regime,
government and constitution, would be prohibited.53 Such an argument
could be made on very much the grounds Kant offers, and such an argument
406
KE N N ETH R . WESTPHAL
could be made consistent with Kant's argument against the right to rebel by
modifying that argument in one small, though significant, detai1. Instead of
claiming that the "chief magistrate" wields supreme coercive force, Kant
could c1aim that the "supreme authority" -now taken as an umbrella term
for the three branches of government-wields supreme coercive force . This
emendation would shift the duty to obey from obedience to a particular
person to obedience to a proper1y formed republican constitution and gov
ernment. Under such republican rule, resistance would be prohibited for
near1y the same reason, that the government wields supreme coercive
power, but it would also be otiose, since the people would be resisting or
rebelling against themselves, as the ultimate seat of sovereignty, and there
would be constitutional channels to redress abuses of power. By my lights,
such a position is the most obvious implication of Kant 's doctrine of private
law for his doctrine of public law, since Kant justifies membership in civi1
society as a necessary means for preserving individual freedom . It is worth
noting that such implications are not merely obvious with historical hind
sight. Apart from judicial redress, this reconstruction of Kant's view is very
near1y that offered by one of his popularizers, Johann Adam Bergk.54 It may
be that Kant hadn 't yet thought through the relation between his division of
governmental powers and the supremacy of state coercive power to see that
reconci1ing them requires a doctrine of checks and balances rather than a
strict separation of powers in order to avoid the usurpation of power by one
branch of govemment.
Several historical points concerning constitutional restraints on the exec
utive are pertinent here. First, the framers of the Constitution of the United
States of America began their deliberations with firm belief in the separa
tion of powers, but were driven to embrace checks and balances in order to
avoid the usurpation of power by any one branch of government.55 Second,
Kant cannot be faulted for not thinking of a constitutional court due to the
example of the United States Supreme Court. Although the US revolution
he admired occurred 2 1 years before MEJ was published, and the US con
stitution was ratified in 1788, the authority of judicial review, as a judicial
power to pass on the constitutionality of federal law, is not expressly written
into the US Constitution. This distinctly American contribution to jurispru
dence is not fully and explicitly formulated unti1 Chief Justice Marshall's
decision in Marbury vs. Madison in 1 803 (the year before Kant's death, only
six years after MEJ appeared) , and it is widely regarded as Marshall 's
invention, for the policy has only seant historical preeedent. 56 Kant can be
faulted for failing c1ear1y to reeognize the possibility that a eonstitution or
a set of legal institutions be sovereign, for this eoncept of sovereignty was
established by the Freneh and Ameriean Revolutions he so admired. On this
view of sovereignty, the law is truly "self-ruling. " Had he eonsistently
recognized this, he might also have recognized that a constitutional court is
a neeessary component of a "self-ruling" legal system.57
407
408
the Reflexionen
zur
Rechtsphilosophie
409
[A]l1 subjects can of course be bound to obey those laws that limit the
power of the monarch, and there can be a court that judges and senten
ces [beurteil und richtet] those actions that they do by command of the
souverain. In this way a11 obedience to him can be withdrawn. (Reflex
ion 805 1 ; Ak XIX 594, Iines 1 6-20; my tr.)
The people cannot vindicate their fre edom through rebe1lion
(seditione), but only through the right vested in them by the constitu
tion, if the summus imperans [supreme ruler] has broken the pactum
fundamentale. Indeed they may not do this through a newly usurped
power, but only by means of that [power] that they have always had
according to the pacto fundamentali, according to a law that grants this
[power] to them and specifies its limits so that the summum imperium
[supreme authority] remains uninterrupted at a11 times according to the
form of the constitution and does not in the mean time enter the Status
naturalis, since in this [state] they cease to be a people, there is no law,
nor any superior towards whom obedience is a duty. (Reflexion 8043;
Ak XIX 590, lines 7- 16; my tr.)
These passages describe the rudiments of impeachment by constitutional
means. Impeachment is a drastic remedy against any official. However,
once one grants the legitimacy of a court to try impeachment, only a sma11,
though important, step is needed to recognize a court of that stature being
vested with the power of judicial review to determine the constitutionality
of executive or legislative acts. That step is missing in Kant 's principles of
law, but K ant does not overlook one crucial point . Three times his
Reflexionen state that not a11 revolutionary activity is rebe11ious. Forcible
resistance to a ruler is not rebel1ious in those cases where the people disobey
a ruIer who has broken the social contract, where they have the constitu
tional right to resist such abuses of power, and where they do not destroy
the social whole in so doing.74 These views are at sharp variance with Kant 's
express denial of the right to revolt even under limited constitutions stated
in ME! (above, VI), and they rest on the cruciaI distinction forgotten in his
published discussion of the issue, the distinction between obedience to a
ruler and obedience to a higher source of law-the constitution. LiberaIs
can only wish that Kant had developed and incorporated these thoughts into
his Metaphysical Elements ofJustice.
X. Kant's Ultimate Moral-Pragmatic Grounds
for Obedience to Actual States
41 0
realist. He grants that actual states have only come into existence by seizure
of power, that extant states always have served to subjugate peoples, and
that no actual state could fully exemplify the principles that would legiti
mate it (52 340, MEJ 37 1 , PP 37 1 ) . Why, then, did he maintain so force
fully the obligation to obey actual state authority, given that no such
authority was in fact legitimate? As Seebohm points out, strictly speaking,
on Kant's view all actual states only represent efforts to leave the state of
nature; humanity has not yet solved its most difficult task, to form a just
civil union.76 The problem with acknowledging this point is that Kant grants
that people have the right to use coercion to force people to join civil society
( 44 3 1 2) . The direct implication of this is that if rulers haven't left the state
of nature because they disregard human rights, then citizens have the right
to use coercive force against their rulers' illegitimate measures in order to
improve the justness of society !77 We are left with the following circum
stance. According to Kant, there can be no legal justification of revolution.
Nor can there be any moral justification of resistance or revolution, pro
vided that the government is legitimate. Yet Kant expressly believes there
are and have been no fully legitimate governments, and that there is no
legitimate enforcement of illegitimate laws ! Kant could argue-he certainly
believed-that obedience to imperfect states is obligatory under some cir
cumstances, but he didn't develop his view on this topic in any detail, and
he would need to be very specific about the grounds of such obligations and
about the extent or kinds of permissible imperfections.78 This development
would have to take into account the avai1ability and effectiveness of channels
for redress of grievances, e.g., a popular assembly or a constitutional court.
If the duty to obey is unqualified only in perfect states, as Kant actual1y
argues, then the duty to obey within imperfect states must rest on broader
grounds of obligation. Kant upholds such broader grounds. Qur obligation
to act morally entails an obligation to do whatever is necessary to act
morally. Kant holds that this inc1udes membership in a state. According to
Kant membership in civil society helps to bring about an improvement in
moral character that is otherwise not generally possible (PP 366-67) . The
coercive laws of civil society counterbalance our inclinations to act immorally,
and through this habituation we eventually are enabled to consider acting, not
only in accordance with duty (as legitimate coercive laws require), but on the
basis of duty. This is one important reason why Kant's discussion of the
metaphysical elements of justice precedes his discussion of the metaphysical
elements of virtue, as Parts Qne and Two of The Metaphysics of Morals.79
Kant 's assertion of popular sovereignty, when confronted with his concern
about tyranny of the majority (PP 352), his insistence on political represen
tation ( 49 G.R.fA 3 1 9), and his ultimate conflation of executive and legis
lative authority into the office of the ruler, shows that he wavers on the
question, Who has the ability to express the general wil1? He distrusts rulers
and subjects alike on this count, but the workings of nature and history are
41 1
supposed to serve a moral end. One element in these workings is that the
chief executive, by actually representing sovereign authority, procures "an
effective influence of this idea on the popular Will" (5 1 338). Even despots
unwittingly serve the moral purpose of counter-balancing what Kant else
where calls the "radical eviI in human nature."80 Gradually, through the
workings of these influences, Kant believes, "the people become capable of
being influenced by the mere idea of the law's authority . . . and thus is
found to be its own legislator (which [ability] is originally based on [innate]
right)" (PP 372) . Kant's ultimate grounds for membership in and obedience
to actual states are pragmatic, conditional, and rest only indirectly on his
fundamental moral principles. On these broader principles, one is obligated
to obey an actual, imperfect state only to the extent that obedience to it
serves to improve one 's moral character. If a regime is so corrupt that it
degrades its citizens' characters more than anarchy or the grave hazards of
revolt, then Kant offers no grounds for contending that anyone is obligated
to obey it. His final grounds of obligation to actual states are therefore not
found in the unconditional principles of ME.! (or "Perpetual Peace" or
"Theory and Practice") and are not absolute grounds ! 8 1
These pragmatic grounds for obeying actual states d o appear i n ME.!.
Kant begins his discussion of the right to rebel in ME.! by warning against
inquiring too closely into the historical origins of any actual state. Kant
strongly suggests that questions of the historical origins of states, and in
particular questions of whether there was an historical social contract to
found a state, are irrelevant to the question of whether one presently is
obligated to obey the extant authorities (49 G.R.fA 3 1 8) . Kant returns to
this point in his reply to Bouterwek, where he reiterates this point (ME.!
372) and insists that no empirical state would ever fully conform to the
conceptual ideal of a perfect state (MEJ 3 7 1 ) . This implies that our obliga
tion to obey actual states cannot rest on their perfect conformity with the
ideal. It is noteworthy, in this connection, that Kant offers a pragmatic
argument against revolutionary reform in his reply. He insists that a defec
tive constitution is to be improved by reforms that are introduced by the
chief of state . "Otherwise, if a subject were to adopt a conflicting maxim (to
proceed in accordance with his Wilkr) , a good constitution would come
into being only as a result of blind chance" (ME.! 372). Now since on Kant's
view a good constitution is required both to fulfill the ideal of civil freedom
(to say nothing of peace) and to improve as much as possible one's moral
character, if Kant is right that a good constitution would come out of a
revolution only by chance, then he has strong moral-pragmatic grounds to
reject the rightfulness of revolution. 82 As he states in "Perpetual Peace,"
[A]ny legal [rechtlich] constitution, even if it conforms with right only
to a small degree [nur in geringem Grade rechtmiiflig] , is better than
none, and the latter fate (anarchy) would result from premature reform.
(PP 373n)
41 2
41 2
Addendum
Kant's duty to obey established
political authorities is conditional. It is
conditional on membership in the state improving one's moral character
more than
non-membership,
and on
membership
in the state
leading
most
Reinhard
Brandt
and Bernd Ludwig
maintain
that, according
to Kant,
nondirectly to a good constitution. The strength of Kant's anti-revolutionary
ideal actual states are legitimate insofar as they anticipate the development of,
rhetoric in these essays does not result merely from Wollner 's threats. It
and
eventually
develop
legitimate
republic.
(See Brandt,
Das
refIects
the fact
that into,
Kanta thinks
these
conditions
are easily
fulfil1ed by
Erlaubnisge
Vernunft
Geschichte
in Kants isRechtsleh
in:consistent,
almost anyoder:
state.
Kant's und
position
on revolution
ultimately
Rechtsphilosophie
der Aufklrung,
op. cit., 170171.)
If correct,
would
since the strength
of his moral-pragmatic
rejection
of athis
right
to disobey is
matched bynot
thesupplant,
depth ofmy
hismain
pessimism
these
essays
aboutofthe
outcomes
supplement,
thesis, in
that
Kants
grounds
political
of
revolutions.
Whether
his
pessimism
is
warranted
is
a
separate
question
obligation to actual states are conditional and pragmatic. If the legitimacy
of an
that
cannot
be
addressed
here;
recent
historical
experience
suggests
not.83
actual state is anticipatory of a fully legitimate state, then its legitimacy does
not
Whether it is warranted or not, its implications for our political duties
derive
from
Kants
strict
metaphysical
principles
of
right
alone,
but
from
those
depends central1y on the extent to which there are constitutional means for
principles
onlygrievances
in conjunction
withthe
further
contingent,
historical
theses
about
redressing
against
govemment.
Kant
did not
adequately
the
coursethis
of history
and theand
(purportedly)
ineluctableaddress
development
of actual
address
issue either,
could not adequately
it before
having
states.
view of
such contingencies,
the legitimacy
an actual
stateofispowers.
moreIn
firmly
grasped
a third: the issues
involved of
in the
division
Throughout
the its
al1eged
"anti-revolutionary'
Kanttransforming
evinces a faith
in (by
the
conditional
upon
actually
anticipating and itstexts
actually
itself
good
effects
(if
not
the
good
intentions)
of
rulers,
an
underestimation
of
the
however circuitous a route) into a true republic. Kant very likely believed that
corruption and corrupting infIuence of tyrants, and an underestimation of
any
and all actual states do meet these conditions, or that they are far more
the common sense and reasonably good prospects of success of some revo
likely
to meet those
conditions
than
the disparaging
result of anyremarks
revolution.
However,
lutionaries.84
However,
despite
some
about
democracy
neither
of these claims
the circumstance
grounds
of iftheir
(PP 352-352),
Kant'salters
democratic
aspirationsthat
arethe
plain,85
even
he did not
legitimacy
conditional,his
rather
than
metaphysical,
unconditional,
andKant did
succeed are
in reconciling
moral
idealism
and his political
realism.
not work out his political principles thoroughly enough to make them work
absolute.
out
practice. The
point
conclusion
chastise
Kant
Theinlimitations
I point
outofinthis
Kants
account is
of not
the simply
judiciarytoare
but two
of
for this failure, but rather to emphasize both the importance and the diffi
many important problems facing Kants account. For further disucssion, see
culty of this task, for Kant thought deeply about various moral, legal, and
Reinhard
Brandt,
Die politische
Institutionbei
Kant,
G. Ghler,
K. Lenk,
pragmatic
considerations
that bear
on this issue.
Hisin:difficulty
in reconcil
H.ing
Mnkler,
& M. Walther,
eds., Politische
Institutioim
gesellschaftlichen
Umbruch
these factors
is instructive,
for it reminds
us that
we, too, need
to grapple
(Opeladen:
335357.
carefully WestdeutVerlag,
with the relation1990),
between
political principles and political prac
tices in order to maintain and improve the legitimacy of our institutions.86
ENDNOTES
l The review is reprinted in Kant's Gesammelte Schriften (K6niglich Preussische
Akademie der Wissenschaft [Berlin and Leipzig: de Gruyter, 1 922-]), XX 445-453n.
Citations are as follows. The Akademie Ausgabe is abbrevated "Ak;" volume
numbers are given in Roman numerals. 1 cite only the Akademie pagination, except
for Kant's "Observations," Religion, and Correspondence. ME! is in Ak VI, tr. J .
Ladd (lndianapolis: Bobbs-Merrill, 1 965). Appended t o ME! 49 is a "General
Remark" with lettered subsections. This remark is abbreviated "G.R." Where a
lettered subsection is referred to, the letter is given after a slash, e.g . . , (49 G.R.fA).
AU sections cited by Arabic numerals are from ME!. Citations from ME! not bearing
a section number are either from the Introduction or the Appendix . Sections indi
cated by Roman numerals are intemal to this article.
41 3
41 4
41 5
what this must mean for interpreting Kant 's viewso Hella Mandt neither eonsiders
this objeetion, nor the important faet that Kant offers it himself ("Historiseh
politisehe Traditionselemente im politisehen Denken Kants" [Batseha, 292-330])0
Dieter Seheffel offers some interesting eriticisms of the first principle of publieity,
but he also ignores Kant's second prineiple, and henee Kant 's eriticisms of the first
principle ("Kants kritisehe Verwerfung des Revolutionsrechts" [in: Ro Brandt, edo ,
Rechtsphilosophie der AufkLiirung: Symposium WolfenbtteL 1 981 ; Berlin: d e Gruy
"o
(who, if regarded under the laws of freedom, ean be none other than the united
people) to the aggregate of the individuals regarded as subjeets o o o" (47 3 1 5]);
"The three authorities in the state that proeeed out of the eoneept of a eommonwealth
in general are nothing more than so many relationships in the united Will of the
people, whieh originates
Ladd translates " Wille" by "Will" (eapitalized) in order to distinguish it from " Willkro"
Kant's term " Willkr" appears in almost none of the passages discussed in the present
essay, so no further indieation will be made that "will" or "Will" translates " Willeo"
Oceuranees of " Willkiir" are indieatedo For discussion ofthis distinetion, see Henry Allison,
Kants Theory 01 Freedom (Cambridge: Cambridge University Press, 1990), eho 70
22Jt is worth quoting Kant 's words: "In a society under a civil eonstitution, natural
41 6
K E N N ETH R . W E STPHAL
law (that is, the kind of law that can be derived for such a society from a priori
principles) cannot be abrogated by the statutory laws of the society" (9 256); "A
state is a union of a multitude of men under laws of justice. Insofar as these laws
are necessary a priori and follow from the concepts of extemal justice in general
(that is, are not established by statute), the form of the state is that of a state in
general, that is, the Idea of the state as it ought to be according to pure principles
of justice. This Idea provides an intemal guide and standard for every actual union
of men in a commonwealth" (45 3 1 3); " . . . whatever might be the kind of laws to
which the citizens agree, these laws must not be incompatible with the natural laws
of freedom and with the equality that accords with this freedom . . " (46 3 1 5) ; "By
' the well-being of the state' is meant that condition in which the constitution
conforms most closely to the principles of justice, that is, the condition that reason
through the categorical imperative obligates us to strive after" (49 3 1 8) . There is
also strong indirect evidence or ascribing this axiom to Kant. This axiom is the
presupposition of the entire ME!, insofar as his book is commiUed to demonstrating
the legitimacy of membership in the state based on the " sole innate right to freedom"
(ME! 237-238), a right deriving from his analysis of freedom in the Groundwork.
.
2 3In "Perpetual Peace" Kant is explicit about the distinct offices of legislator and
executive requiring distinct officers. He states: "Every form of government which
is not representative is, properly speaking, without form . The legislator can unite in
one and the same person his function as legislative and as executor of his will just
as little as the universal of the major premise in a syllogism can also be the particular
subsumed under the universal in the minor. And even though . . . constitutions are
always defective to the extent that they do leave room for this mode of administra
tion, it is at least possible for them to assume a mode of govemment conforming to
the spirit of a representati ve system (as when Frederick II at least said he was merely
the first servant of the state)" (PP 352; L.W. Beck tr. , Kant Selections [New York:
Macmillian, 1 988], 435). Kant's original begins: "Alle Regierungsform namlich, die
nicht reprasentive ist, ist eigentlich eine Unform, weil der Gesetzgeber in einer und
derselben Person zugleich Vollstrecker seines Willens (so wenig, wie das Allgemeine
des Obersatz in einem Vemunftschlusse zugleich die Subsumption des Besondem unter
jenem im Untersatze) sein kann . . " This obviously parallel passage shows that Kant
uses the term "zugleich" in a logical sense to deny combinations of distinct funtions.
.
24Compare the following two remarks: "The relationship of the highest authority in
the state to the people may be conceived in three ways : a single person in the state
has command oyer all, or several persons who are equal and united ha ve command
oyer all the rest, or all the people together ha ve command oyer each person,
including themselves. Accordingly, the form of the state may be autocratic, aristo
cratic, or democratic. (It would be improper to use the term 'monarchical ' instead
of 'autocratic' for the concept intended here, for a monarch is one who possesses
only the highest authority. The laUer is sovereign; the former merely represents
him)" (5 1 338-339); and "Every true republic is and can be nothing else than a
representative system of the people if it is to protect the rights of its citizens in the
name of the people. Under a representative system, these rights are protected by the
citizens themselves, united and acting through their representatives (deputies)" (52 34 1).
41 7
25 1 criticize onIy what Kant did, to propound the "metaphysicaI elements" of justice
without analyzing govemmental institutions. They are further questions whether
Kant thought that such an abstraction was required by his "metaphysical" leve! of
discussion and whether Kant was right that this is required by his level of discussion.
These questions cannot be explored here. 1 suspect that the answer to the latter
question is negative, but that the answer to the former is positive. (Compare Kant's
remarks about "metaphysics" [MEJ 2 1 7] with his remarks about the "idea" of the
state [45 3 1 3] ) .
26 Cf T&P 299-300: " . . . under an already existing civil constitution the people no
longer have the right to judge and to determine how the constitution should be
administered . . . "
27Beck dismisses Kant's argument in MEJ as making "a point of boring obviousness,
name!y, that there can be no legal right of revolution" (op. eit., 1 76). He finds a
deeper moraI argument based on the Principle of Publicity in "Perpetual Peace." At
one point Seebohm suggests that he concurs, since he finds that Kant approves of
some revoIutions on "extra-Iegal" considerations (op. cit., 560), but he recognizes
that Kant's argument must be a moral argument (ef, ibid., 576). van der Linden
realizes that Kant's argument must be a moral argument to meet the position of
revolutionaries, who would be unimpressed by a legal prohibition on revolt (op. cit.,
1 80). Scheffel argues that the right of revolution is forbidden under conditions of
justice that conform to natural law, so that Kant's positive assessment of the
enthusiasm aroused by the French revolution is compatible with his critical rejection
of the right of revolution, since the French revolution was directed against a
constitution that did not conform to natural law. His argument tums on two points.
First, that a revolution would be contrary to the social contract. Second, that
revolution would be contrary to a condition of justice (reehtlicher Zllstand). Scheffe!
then argues that if there were no contract, there would also be no exclusion of the
right to revolt (op. cit., 1 99). Similarly, if one were in a merely legal c ondition
(gesetzlieher Zustand), this would not exclude an extra-Iegal, moral right to revolt
(ibid. , 200). Scheffel seems to offer interesting criticisms of Kant 's doctrine in the
name of expounding Kant's doctrine. Kant specifically denies that a social contract
is any matter of fact (T&P 297, 49 G.R./A 3 1 8, MEJ 37 1 -372), he specifically
denies the relevance of which came first, the constitution or the highest power (49
G.R./A 3 1 8), and in the very passage quoted by Scheffel he specifically condemns
revolution for contradicting the whole legal constitution (gesetzliehe Verfassung).
These points refute Scheffe!'s first point. Second, Kant contends that a legal condi
tion requires promulgation and enforcement of law, both roles of the ruling power,
and these factors make for a reehtlieher Zustand. Distinct from this in Kant 's view
is a reehtl1liiiger Zllstand, in which laws conform ta the principles of natural law
(see Spaemann, op. cit. , 348). Kant's argument expressly denies a right of revolution
in a reehtlicher Zllstand (49 G.R./A 320, line 1 3). This refutes Scheffel 's second point.
2 8Kant also states: "The ruler . . . prescribes those rules for the people by means of
which each of [the citizens] can, in conformity with the law, acquire things or
preserve his property . . " (MEJ 49 3 1 6) . This passage may conf1ate legislative
and executive authority. Exactly what sort of "rules" the ruler prescribes is not clear.
.
41 8
KE N N ETH R . W E STPHAL
If Kant has laws in mind, then this passage contains the troubling conflation of
govemmental powers. If Kant means some other sort of "ordinances or decrees"
(ibid.) which supplement the law, then this passage is nominally consistent with
Kant 's separation of powers-but it harbors a politica\ threat to that separation: Who
or what cou\d prevent the ruler from issuing ordinances or decrees, e.g. , that make
it extreme\y difficult for some group of peop\e to acquire or preserve their property?
29 See the simi1ar statements quoted above in V. This contrast between the sover
eign and the peop\e is again in conflict with Kant's assertion that on\y the people
are sovereign. Kant's argument against revolt begins as it ought, arguing against
resistance to the "chief magistrate" (oberster Belehlshaber), but slides into discuss
ing the "legislative chief" (das gesetzgebende Oberhaupt) of state or the "supreme
\ egislation" (hOchste Gesetzgebung); "legis\ative chief' also appears in Kant's
Appendix (ME! 372, cp. 49 G.R./A 3 1 9-320). If Kant wanted to distinguish
between the supreme legislative office and the people, then he should have treated
two distinct issues of resistance: resistance to the executive and resistance to the
\egislature. Hella Mandt emphasizes Kant 's despotism and the traditional e\ements
of the absolute state in Kant 's thought, but she doesn't see how Kant himse\f must
regard his own view as despotic, she ignores the implications, indeed the existence,
of Kant's doctrine of the division of powers, and she ignores Kant's qualifications
on the duty to obey po\itical authority. Her ascription of Kant's repudiation of the
right of resistance to his "epistemo\ogical and logica\ orientation" (op. dt. , 3 1 7) is
thus unfounded.
300p. cit. , 1 74.
3 1 Seebohm, op. cit. , 558.
3 21 insist on this point despite the fact noted above (V) that Kant occasionally
distinguishes terminologically between the sovereign and the people, since those
passages conflate the three state authorities, whereas the passage just quoted dis
tinguishes them.
33 "Inner morality" translates "dem inneren Moralischen." Wemer Haense\ senses
that this passage and T&P 299 (quoted above, p. 388) hint at important qualifications
of Kant's view, but instead of spe11ing these hints out, he dismisses their significance
because of the purportedly anti-revo\utionary character of the texts in which they
occur ("Kants Lehre vom Widerstandsrecht" [Kant-Studien Erganzungsheft 60,
1 926; 1 - 1 04] , 59-60).
3 4Wolfgang Schwartz ("The Right of Resistance" [Ethics 74 ; 1 963; 1 26- 1 34] , 1 30),
Nicholson (op. dt. , 2 1 8), and Leslie Mulholland (Kant 's System 01 Rights [New
York: Co\umbia University Press, 1 990] , 338) notice this enticing but allusive
phrase and simp\y assume it means what 1 demonstrate it means. Schwartz contends
that Kant grants both a duty and a right to non-corr pliance, but he on\y addresses a
narrow se\ection of Kant's statements on the matter. Nicho\son argues that the duty
not to resist the sovereign is an absolute moral duty (op. dt., 2 1 5) , but also contends
that "the conscientious man's disobedience to avoid acting unjustly is neither
resistance nor illegitimate" (ibid. , 2 1 9). Now just because Kant doesn 't call such
41 9
disobedience of immoral commands "resistance" doesn't mean that it's not resis
tance, and Nicholson doesn 't consider the question of how his interpretation can be
reconciled with Kant's admitted insistence that we are ob1igated even to obey tyrants
(ibid., 222). Nicholson also over1ooks the issues involved in Kant's statements about
the chief executive being subject to the law and subject to impeachment by the
legislator (ibid. , 220), as well as Kant's division of powers and its conflation (ibid.,
222-223). Mulholland concludes that "either Kant must revise his conception of the
rights of the people against a despot, or he must allow that there are circumstances
under which the people have the title to coerce a despot" (op. cit. , 346). If 1 am right,
Kant's views are qualified carefully in such a way that such revisions are unneces
sary because such allowances are already made.
3S Cited and translated by Beck (op. cit., 1 73). Dieter Henrich notes Kant's accep
tance of disobedience, resistance and protest, though only by reference to this
Reflexion ("Kant ber die Revolution" [Batscha, 359-365] , 362-363). He doesn ' t
see the traces o f such views in MEI that 1 highlight here, nor those in "Theory and
Practice" or "Perpetual Peace" dicussed above.
36Ak V 1 55- 1 57 ; L.W. Beck, tr. (Indianapolis: Bobbs-Merril1, 1 956).
37"Inner morality" here translates "innere Sittlichkeit." Kant does not distinguish
between 'das Moralische'and 'das Sittliche,' so 1 see no reason to think that these
phrases differ in meaning in these contexts. Ladd translates "gedachten" as "imag
inary ; " 1 have emended this to read "represented." A main aim of Kant 's philosophy
is to determine what can be thought ('gedacht') within a practical context without
being known within a theoretical context.
38Beck (op. cit. , 1 84) contends that Kant's view is that no one is obligated to obey
commands to perform immoral acts, but he supports this contention simply by
genera1izing from Kant's discussion of false witness in the second Critique. My
construal of "inner morality" is confirmed by the only other occurrence of the phrase
familiar to me, where Kant speaks of "innere Moralitiit" in Religion within the
Limits 01 Reason A lone (Greene and Hudson, trs.; New York: Harper Torchbooks,
1 960), 90/Ak VI 99.
420
K E N N ETH R. WESTPHAL
immoral, since it involves disrespecting the person commanded as and end in him
or herself. (See Onora Q'Neill, Constructions of Reason [Cambridge: Cambridge
University Press, 1 989] . chs. 6, 7.) Consequently, being forced to obey a law to
which one did not, or could not, agree is illegitimate, and resistance to such laws
is, by the reasoning 1 have been setting out, legitimate. (By making consent hypo
thetical [T&P 299; quoted above, p. 388] Kant intrdouced difficulties that cannot,
and need not, be addressed here.)
4 1 It is not an altemative to my interpretation to suggest that Kant grants the state
(to speak broadly here) authority oyer all matters of public policy (including
property rights), while granting individuals moral authority oyer all personal mat
ters. S ince Kant's ethical theory fonns the foundation of his political theory, even
if the state has authority oyer all public policy, no state legitimately could command
any of its citizens to do anything that violated the moral law.
42Por discussion of Wollner 's policies, see Klaus Epstein, The Genesis of German
Conservatism (Princeton: Princeton University Press, 1 968), 356-369. Por specific
discussion of their bearing on Kant see Beiser (op. cit.) and Emst Cassirer, Kant 's
Life and Thought (James Haden, tr. [New Haven: Yale University Press, 1 98 1 ] , ch .
VII. Wollner 's Cabinetsordre to Kant and Kant's letter of reply to Pri edrich
Willhelm II appear in his preface to The Conflict of the Faculties (M.J. Gregor, tr.
[New York: Arabis Books, 1 979]), Ak VII 6- 10. Gregor 's introduction contains some
very illuminating letters and details of Kant's treatment by and his response to he
censors (ibid. , vii-xxix). Kant's subsequent policy was to speak only the truth, but
not necessarily to speak the whole truth. See Doctrine of Virtue (M.J. Gregor, tr.
[Philadelphia: University of Pennsylvania Press, 1 964]), Ak. VI 433n; LeUer to
Moses Mehdelssohn of April 8, 1 766 (Ak X, 69fA. Zweig, ed. & tr. , Kant: Philo
sophical Correspondence [Chicago : University of Chicago Press, 1 967] , 54) ; and
Kant 's Note given at Ak XII 380 (1 sI ed., 406) . (1 thank Richard Velkley for helping
me l ocate this Note.)
43. Seebohm notes that on Kant 's principle, there is no right to revolt against an
ideal state (op. cit., 576, 577), but he doesn 't notice Kant's restrictions on dutiful
obedience or on the legitimacy of revolt, nor does he follow out the implications of
Kant's strict statements of principle for his views on the obligation to obey actual
authorities (on which see below). There have long been concems about the manner
of Kant's composition of MEJ (whether he assembled notes written at various times)
and about Kant's waning mental capacities at the time this text was completed.
Bemd Ludwig (op. cit.) makes a good case that the basic ordering of Kant's
discussion can be made out in a sound manner, but he does not delve into the issue
of whether Kant's sections were written at different times, nor does he discuss the
tension 1 have stressed between Kant's republicanism and his rejection of a right to
resist the ruler. It would be nice to discover that Kant's argument against resistance
to the ruler stemmed from an earlier period, but that is out of the question in view
of "Theory and Practice" and "Perpetual Peace. " This much is sure: Kant 's reply to
his reviewer was written during the time between the first and second editions of
the Metaphysics ofMorals ( 1 797 and 1 798) and it contains a quite specific and strict
limit on the duty to obey the ruler.
42 1
422
KE N N ETH R. WESTP H A L
sole and sufficient titIe t o legitimacy (ibid.). This is false and certainly not Kant's
view. Kant denies that there have been any fully legitimate states (PP 37 1 , MEJ 37 1 ;
see X) . If he held the view Spaemann attributes to him, he would not have denied
that there were fully legitimate states.
48Kant speaks here of the leader as "the supreme legislative power" (T&P 299) and
suggests that the leader may be the legislative representative of the people. Kant
nowhere clarifies his occasional mentions of representation, and treating the leader
as a supreme legislative authority contradicts again in this text his own distinction
between chief executive and legislator, as discussed in Y.
49 See Epstein, op. cit., 373.
50Dieter Henrich quotes this passage and lets i t stand as Kant's considered view (op.
cit., 359-360). He does not notice, as 1 argue below, that this passage cannot be taken
alone.
5 1 See IX, however, for a discussion of pertinent Reflexionen.
5 2Quoted above, pp. 395, 400. Notice that this contradiction concems the supremacy
of the executive or legislature; the judiciary isn 't considered. This further supports
my suggestion that Kant didn 't consider courts as a forum for addressing abuses of
constitutional power.
53Kant indeed extends his prohibition on resistance or revolt to such "1imited"
constitutions (MEJ 49 G.R./A, 322), but he apparent\y doesn 't rea1ize-he cer
tain\y doesn ' t remark on-how less needful such and exercse of public force should
be under such a constitution.
5 4J.A. Bergk, Briefe ber Immanuel Kant 's Metaphysische Anfangsgrnde der
Rechtslehre, enthaltend Erliiuterungen, Prfung und Einwrfe (Leipzig & Gera:
Wilhelm Heinsius, 1 797). See ' LeUer 23,' 1 89-2 1 4 , esp. 1 92- 1 97 1 .
55 See Forest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the
Constitution (Lawrence, Ka: University Press of Kansas, 1 985), 80-86, 225-260;
and Madison's explanations in The Federalist, nos. 47-5 1 .
56Marshall's decision is reprinted in Lockhard, Kamisar, and Choper, The American
Constitution: Cases and Materials (St. Pau\: West Pub1ishing Co., 1 967), 1 -6. For
discussion of the issue and Marshall 's originality, see Gerald Gunther, Constitu
tional Law (llth ed. ; Mineola, NY: The Foundation Press, 1 985), 1 3- 1 7. For a
summary of the historical antecedents of judicial review, see Klaus Stem,
Grundideen europiiischer-amerikanischer Verfassungsstaatlichkeit (Berl i n : de
Gruyter, 1 984), esp. 23 ff. Stem's discussion is so concise as to appear whigish ;
McDona\d indicates the historical qualms i n this development (op. cit. , 84-85,
254-258).
5 7Although Kant occasionally speaks of a constitution as if it were the object of
obedience, and so perhaps the locus of sovereignity (MEJ 372; quoted above p . 386),
these remarks are occasiona\, and each time Kant attempts to specfy a 'sovereign '
he attempts to specfy specific persons, not a legal document or insitution. In
423
"Theory and Practice" he does repudiate revolt against a constitution, but he does
not there consider constitutions in relation to rulers (T&P 302n, 305). If anything,
these passages bear out my main complaint, that Kant keeps regarding revolt against
a ruler, a person, as a destruction of a legal system, a constitution (ef MEl 320).
58Bk. I Ch. 2 1 4- 1 6; Leslie J. Walker, S.J., tr., The Diseourses ofNieeolo MaehiaveLLi
(London and Boston: Routledge & Kegan Paul, 1 950), voI. 1, 2 14-2 1 5. 1 thank Natalie
Dedenkar for bringing Machiavelli to my attention regarding this point.
59 Diseourses VI. l 06- 1 1 . On Polybius 's influence on Machiavelli in this regard, see
Walker's notes 1 8 and 1 9 (op. cit. , voI. II, 1 1 - 12).
6OE.P. Panagopoulos, Essays on the History and Meaning of Cheeks and Balanees
(Lanham, MD: University Press of America, 1 985), documents from primary
sources the wide-spread influence of Polybius's view of mixed govemment on the
development of the theory of checks and balances in the English and American
contexts. (See esp. 4, 1 6-2 1 , 25-26, 35, 39, 40, 42, 46-49, 53, 57, 60-66, 1 0 1 ,
1 06- 1 07, 1 1 0, 1 1 5, 1 27- 1 28.) There were at least four translations of Polybius into
English during the relevant period, by Watson (London, 1 568), Grimmston (London,
1 633), Sheeres (London, 1 698), and Hampton (London, 1 764). This shows consid
erable popular interest, since the well-educated would, like Hume, have read Poly
bius in the original. Additionally, at least two of these translations were expressly
undertaken to address the debate between republicans and monarchists about the
extent to which either side could claim the support of Polybius 's authority. A German
translation by Seybold appeared in 1 783 (Lemgo: Meyer), ten years before the first
of Kant's main political writings. (1 thank the referee for JPR for mentioning to me
the wide-spread discussion of Polybius's views on this issue in this period.)
6 1 Diseourses, op. cit. , 1.4.4, 1.6. 1 Of. , 1.35. 1 , 1.44.2-3; ef III.34.3 (Walker, voI 1, 2 1 9,
226-233, 292, 3 1 2, 557-558).
62Kant mentions Polybius only once, in his lectures from the Winter term of
1 765- 1 766, as an example of an author whose book contains genuine worldly
wisdom (Ak II 307, line 1 1 ). Kant similarly mentions Machiavel1i only once, and
not in public. In the preparatory notes for "Theory and Practice," Kant stated the
aim of one section of his essay as follows: "Against Hobbes and his Machiavellian
ism that the people have absolutely no rights" (Ak XXIII I 34, line 1 3 ; my tr.,). This
statement suggests that Kant knew Machiavel1i by reputiation, or at unlikely best
from The Prinee, but certainly not from his other, overtly republican writings, such
as The Diseourses. These two references to Polybius and to MachiaveIli are the only
ones listed in Holger, Gerresheim, Lange, & Gotze, eds., Allgemeiner Kantindex zu
Kants gesammelten Sehriften Bd. 20 3 . Abteilung. Personenindex zu Kants
gesammelten Sehriften (Berlin & New York: de Gruyter, 1 969) .
63Kant mentions Montesquieu by name in only one publication, in his early essay
" [Observations . . . ] on the Beautiful and the Sublime" (John T. Goldwait, tr. ,
[Berkeley: University of Califomia Press, 1 960] , 1 03/Ak II 247). Kant mentions
Montesquieu six times in passing, according to the Personenindex (op. cit.), and
two of his correspondants similarly mention Montesquieu in passing. Each of these
424
K E N N ETH R . W E STPHAL
passages suggest that Montesquieu had been widey read, which he was. Kant once
assessed Montesquieu 's work in this way : "One reason because of which Montes
quieu was able to say so many penetrating [vortreflich] things is this, that he had
presupposed that those who introduced customs or would give laws every time had
a rational ground [for doing so]" (Ak XX 1 66, line 24; my tr.). Patrick Riley brings
out many points of comparison between Kant's views and those of Montesquieu in
Kant 's Politieal Philosophy (Totowa, NJ: Rowman and Littlefield, 1982).
64Thomas Nugent, tr. , The Spirit 01 the Laws (New York: Macmillan [Hafner] .
1 949) ; Bk. II, Bk. XI 4 (voI. 1 8- 1 8, 1 50).
65Ibid., Bk. XI Ch. 6 (voI . 1 1 58).
66Ibid., Bk. XI Ch. 6 (voI . 1 1 59).
671 disavow the notion that these notes contain his true esoteric doctrine in contrast
to his official published doctrine. Dieter Henrich discusses some of the pro-resis
tance Reflexionen 1 discuss here (he quotes Reflexionen 8043, 8044, 8046, and 805 1 )
and claims that they were written before the French Revolution (op. cit. , 360) . He
suggests that at the time of "Theory and Practice" it occurred to Kant that govem
mental power must be unitary in view of England's attempted interference in
post-revolutonary France (360, 361 ; ef Reflexion 8077). This is paradoxical. Kant's
most developed account of the division of powers is in ME!; it is more refined than
that given in the mean time in "Perpetual Peace." A more likely hypothesis is that
the horrors of the Reign of Terror firmly reinforced Kant's belief that people need
a supreme political control in oreder to keep them from acting immorally (see X) .
On Kant's refinement of his division of power, compare his respective discussions
of distinction between the form of sovereignty and form of govemment (PP 352;
ME! 338-339) . In ME! a monarch is no longer an autocrat. Kant apparently tries to
incorporate Montesquieu 's innovative govemmental taxonomy (Spirit of the Laws,
op. cit., Bk. II) .
68Reflexion 805 1 ; Ak XIX 594, lines 1 3 - 1 5 , 28-29.
69Reflexion 8046; Ak XIX 592, lines 1 4- 1 5 .
70Reflexion 80 14; Ak XIX 582, lines 6-9.
7 1 Kant is not clear about the nature of the "injustice" of a single person as sovereign,
but the context suggests that it lies in a single person 's abi1ity to transfer power to
another party at wi11. A single person as sovereign thus makes for an unstable
constitution: "Hence the misfortune of the [French] king follows directly from his
sovereignty ; after he had once allowed a11 the deputies of the people to assemble
themselves, he was thus nothing, since his legislative power was grounded only on
his representing the whole people. From this also becomes clear the injustice of a
single person as sovereign." (Reflexion 8055; Ak XIX 596, lines 4-9; my tr.).
72T&P 304 (quoted above, p. 387), Reflexion 8044; Ak XIX 59 1 , lines 8- 1 0.
73Reflexion 8044; Ak XIX 59 1 , lines 8-1 1 .
425
74Reflexionen 8043, Ak XIX, 590, lines 1 7-20, 32-33 ; 8046, Ak XIX 59 1 , lines
2 1 -29.
7S On the preceeding page Kant states, " . . . the subject may lodge a complaint
(gravamina) about this injustice, but he may not actively resist" (49 G.R.fA 3 1 9) .
I n Reflexion 8043, i n which Kant sketches most thoroughly the rudiments of
constitutionally authorized resistance, he also states that where no such constitu
tional provision is made, the people are left to the good wil1 of their regime (Ak
XIX 590-59 1 , lines 33- 1 ) .
760p cit., 586; ef "Idea for a Universal History with a Cosmopolitan Intent"
(Humphrey, 29-40), Ak vm 22. Unfortunately, Seebohm wavers on whether actual
states are only attempts to leave the state of nature, since he describes despots and
revolutions as stepping "back into" the state of nature (op. eit. , 585, 5 86). If they
can step back into the state of nature, they must have left that state at some point.
.
77Two commentators have also noticed this implication; John Atwell, in "A Brief
Commentary" on Beck's and Axinn's papers (Journal of the History of ldeas 32
[ 1 97 1 ] , 433-436; 433), and van der Linden (op. cit., 1 8 1 ) .
781n "Perpetual Peace" Kant states "[t]hese are permissive laws o f reason : t o allow
a condition of public right afflicted with injustice to continue unti\ everything is
either of itself or through peaceful means ripe for a complete transformation, for
any legal constitution, even if it conforms with right only to a small degree, is beUer
than none, and the latter fate (anarchy) would result from premature reform" (PP
373n).
79For discussion of the moral purpose of membership in civi\ society see Patrick
Riley (op. cit.).
80 See the tit1e to Book One of Religion within the Limits of Reason Alone (op cit.).
This and the S econd Book contain Kant 's funest statement o f the difficulties of
behaving morally whi1e being subject to sensuous inclinations. The problem with
viewing despots as this sort of counter-weight is that they have been known, well
before Kant 's time, to be exemplars of the "radical evil in human nature." As Reiss
notes (op. cit., 1 89 f.), the modern technical developments of communcations
media, transit, and weaponry have greatly multiplied the dangers of which malign
despots are capable and also have undermined the effectiveness of Kant 's sole
bulwark against despotism, freedom of expression.
8 1 Kant al so offers pragmatic grounds to rulers to honor human rights: If they do
not, their subjects are likey to revolt (ibid.). Beck contends that "[t]he duty we have
to contribute to the progress of mankind is a duty of imperfect obligation, is
unenforceable, and leaves elbow room for its realization . . . . the duty we have to
fullfil1 the requirements of the established law, is a duty of strict or perfect obliga
tion, and is thus for Kant prior in its claims to the former" (op. cit. , 1 84 ; referring
to PP 377). However, if I am right that the absolute duty to obey the law holds only
within fully legitimate states, then the duty to obey actual positive law also becomes
a conditional duty. Kant is not inconsistant in the way Beck supposes.
426
K E N N ETH R . WESTPHAL
821 stress the "if' in this statement; 1 believe Kant underestimates in these essays
the political rationality that can be found in revolutions, in part because he regards
revolutions as merely natural phenomena (ef PP 373n).
8 3Kant thought better of the political progress made possible by revolutions when
he wrote the second part of The Struggle o/the Faeulties (op. eit.). The scope of the
present essay, however, is restricted to analyzing Kant 's purportedly anti-revolution
ary writings, and aims to show that they are not anti-revolutionary in the way so
commonly thought.
84If 1 were to identify a source within Kant's philosophy of his favorable (if
qualified) regard toward leaders, it would be his faith in a providential God. This
premise appears in his argument in the Groundwork that reason's "natural" purpose
is to produce a good will (Ak IV 395-396), and it underlays his "Idea for a Universal
History" (op. cit.). Thus 1 concur with John Atwell, who remarks on " . . . Kant's
almost desperate faith that nature, providence, or God will-even despite the efforts
of men-bring about a just civil society if only men will endure, for a time, an unjust
one" (Ends and Principles, op. cit., 1 85- 1 86).
85Cf PP 372, quoted above, p. 4 1 1 ; ME! 46 3 1 3 , 3 1 5 , 3 1 8, 52 34 1 , discussed
above, pp. 395-396, and notes 22, 24.
86For example, John Rawls's Theory o/Justice is applicable to "near just" societies.
One of the immediate criticisms of his theory from the left was that the USA in not
even a "near just" society.
1 thank Manfred Kuehn, Larry May, and Michael Hardimon for their helpful sug
gestions on the first draft of this paper. Various portions of this paper were presented
to the Indiana Philosophical Association (October, 1 987), to the APA Pacific Divi
sion Meeting (March 1 988), to the University of New Hampshire Symposium in the
History of Phi1osophy (September, 1 989), to the Northern New England Philosophy
Association (October, 1 989) , to St. Anselm 's Col1ege (Manchester, NH; December
1 989), to the Seventh International Kant-Congress (Mainz; March, 1 990) , and to the
APA Central Division Meeting (Apri1 , 1 990) . 1 benefitted greatly from the discus
sion on each of these occasions, and especally from comments delivered by Harry
Silverstein (APA Pacific), David Cummiskey (UNH Symposium), and Nancy Snow
(APA Central) . An abbreviated version of some of this material appeared originally
in "Kant 's Qualified Principle of Obedience to Authority in the Metaphysical
Elements o/ Justiee" (G. Funke, ed. , Akten des 7. internationalen Kant-Kongre
[Bonn: Bouvier, 1 99 1] , 88- 1 0 1 ) . 1 thank Professor Funke, as editor, for kind permis
sion to reuse that material here. Finally, 1 thank Harry van der Linden for very helpful
comments on the penultimate draft of this paper.