Book Review: Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy
posted by Stefan Bird-Pollan
Arthur Ripstein Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press; October 15, 2009; $49.95)
Though Kant has been enjoying significant critical attention in moral and political philosophy since Rawls published A Theory of Justice almost 40 years ago, Kant’s ideas have only rarely been defended as a whole. The chief problem with Kant’s view, one which Rawls shared with Kant’s immediate successor Hegel, is that the notion of the categorical imperative is essentially too abstract and must be given a more concrete grounding. Constructivism was to be the way of doing this. Rawls thus rejected Kant’s metaphysical argument for morality and replaced it with an intuitive account of our own deep intuitions about justice, to be brought out by the procedure of the original position, later to be refined by the reflective equilibrium. Thus Kantian autonomy was to be cashed out in terms of respect for persons.
Arthur Ripstein, though broadly sympathetic to Rawls’s project, believes that the formal theory of right underlying Kant’s account of law in the Doctrine of Right (the first book of Kant’s Metaphysics of Morals 1797) is not only worth preserving, but worth championing. Ripstein’s excellent book thus proposes a comprehensive reading of Kant’s legal and political philosophy which insists that we can indeed build up a coherent system of rights from the simple idea of the innate right of humanity. Philosophically speaking, such an approach would reestablish a strong link between natural rights and positive rights and hence would go some way toward solving the vexing questions left open by Kant’s moral writings as well since the doctrine of right could then be used to make more concrete that very system.
The relation between Kant’s famous categorical imperative and the Metaphysics of Morals’ innate right of humanity is shadowy. While Ripstein does not attempt to vindicate the categorical imperative, he does provide an interesting argument through which to understand the relation between the categorical imperative and the universal principle of right (the principle which the innate right of humanity is based on, see below). The central problem to be resolved here is the relation between autonomy in morality and coercion in law. For, while the categorical imperative rejects all forms of coercion (and deception), the principle of right requires coercion. How can these two principles be made coherent without, for instance, reducing right to an instrument of the categorical imperative, something akin to Rousseau’s ill-understood idea that the state can force us to be free.
Ripstein argues that while the categorical imperative concerns us as noumenal beings, being who are free of empirical constrainsts, the universal principle of right concerns us as embodied beings. The categorical imperative is thus about moral self-determination while the universal principle of right is concerned with physical independence. That is, it is morally reprehensible to intend to cheat someone out of money even if one does not get the opportunity to, but if the action does not come to pass, no right has been violated. Conversely, it is illegal to trespass on someone’s land even if one did not do so intentionally (and is thus morally innocent).
The principle of independence or the innate right of humanity is just what the categorical imperative looks like for embodied creatures like us who exist in space and time. The fact that we have bodies introduces further constraints on our actions than merely moral ones. This is why we need a system of right. This system of rights is founded on the innate right of humanity, the idea that you not choose for me. Here, again, we see the fundamentally formal character of Kant’s philosophy of law. Law is not, then, about redistribution or other effects of social arrangements, as it is for Rawls or Mill. Rather, law is meant to safeguard independence in a world in which others have real effect on me. We are now also in a position to make sense of the idea of coercion. “Coercion is understood as justified if and only if it restricts a restriction on freedom.” (55) In this way, force cancels force by restoring the original right of independence. This account does without the idea of sanction since coercion is merely returning things to the status quo and not some further action which would need a separate justification.
I would now like to sketch a few consequences of this view from among the many Ripstein discusses. Let me start with property, which occupies a central part of Kant’s legal philosophy as it does in all modern accounts. Property is central for Kant because, as embodied beings, we must exist somewhere. (Ripstein spells out some of the consequences of this view in an interesting chapter devoted to the need for public roads.) More generally, the right to property is an extension of the right to independence and self-determination. Property is necessary for us to take the means to our ends and we just do have the right to take the means to our ends, that is what makes us rational humans. By keeping his analysis on the formal level, Kant avoids problem of how much property one should have and what it is required to make property one’s own. I acquire property merely by using it as the means to my ends. If I am using something and you take it away from me, you have violated my right to independence, even in the state of nature.
There also exists for Kant a duty to leave the state of nature. This duty is a postulate, something that is incapable of theoretical proof and yet is a practical necessity. The idea of the state is, for Kant, something that is a priori or analytically present in the idea of independence itself. The state is thus a formalization of this original right, the innate right of humanity. The original contract is, however, not an actual contract— it is the idea of uniting for self-rule together with others. Implicit in this idea is the same thought that Kant expresses in the categorical imperative, that the people cannot be subject to any laws they would not choose for themselves.
These are complicated ideas and this review has no doubt been too short to do much justice to them. It is a great virtue of Ripstein’s book to discuss each of these important issues in depth without becoming overly technical. He engages the secondary literature in footnotes and the more important rival contemporary as well as classic theories in the main text itself. Each relatively short chapter can be read on its own, something which will make the book an indispensable reference work as well.
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Stefan Bird-Pollan is a lecturer in Social Studies at Harvard University. He primarily works in ethics and political philosophy and is currently writing a book on Hegel’s critique of Kant.
March 31, 2010 at 11:34 pm
Posted in: Book Reviews, Jurisprudence, Legal Theory
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Responses (4)
Book Review: Ripstein’s Force and Freedom « Perverse Egalitarianism - April 1, 2010 at 1:05 am
[...] } A review of Ripstein’s book on Kant’s political philosophy by Stefan Bird-Pollan: Though Kant [...]
A.J. Sutter - April 1, 2010 at 7:03 am
Thanks for the interesting review.
Jeff Lipshaw - April 1, 2010 at 12:09 pm
Another take on this is Jeremy Waldron’s article, Kant’s Legal Positivism, 109 Harv. L. Rev. 1535 (1996). I think he takes a similar tack in explaining Kant’s own views of the authority of the state, which is that because of the abstractness of the CI, there will be conflicting views of the moral right, and in the heteronomous, empirical (non-noumenal) world, that has to be expressed in positive law. (Or at least that’s what I recall about it. Brian Tamanaha also discussed this view in his “A General Jurisprudence of Law and Society” at pp. 103=04.)
Patrick S. O'Donnell - April 1, 2010 at 12:52 pm
I appreciate the review and especially the attention accorded Ripstein’s book but I think there’s some confusion and thus misleading or inaccurate statements in the first paragraph. I don’t think Rawls had a problem with the “abstract” nature of the categorical imperative so much as the way Kant proceeded to draw out the moral implications in conjunction with specific metaphysical and epistemological assumptions and commitments, including its “foundational” or axiomatic character in Kant’s moral philosophy and theory of practical reason. For Kant at least, the categorical imperative, as the supreme principle of practical reason, “can itself be constructively justified” (Onora O’Neill), and no doubt Rawls was aware of this.
In Theory of Justice (1971) it is not clear that Rawls has successfully stayed clear of either metaphysical or epistemological assumptions and claims of Kantian provenance. For example, his notion of “moral persons” as being “free and equal” strikes one as beholden to the Kantian ideals of liberty and equality and this would appear to unavoidably raise questions as to their metaphysical status, especially insofar as these ideals are moral principles (cf. too, for instance, where Rawls speaks of the ‘original position’ as ‘the point of view from which noumenal selves see the world’). Indeed, some communitarian critiques of the Theory of Justice were right in detecting metaphysical assumptions about “the self” or selves that Rawls sought to disavow. And this is perhaps one reason why in his later work, Political Liberalism (1993) Rawls answers (and I think concedes too much to) his communitarian critics by more clearly distancing himself in an explicit fashion from both Kantian-like metaphysics, now locating the concept of “free and equal persons” in the political doctrines of a specific political culture, “ours” (or at least ‘citizens in democratic polities;’ one reason I would prefer to describe this as ‘constructivism’ sans the Kantian adjective). As Onora O’Neill has pointedly remarked, “Like Rawls, Kant presupposes a plurality of agents who are coordinated neither by a pre-established harmony nor by the contingencies of shared ideology and norms: but unlike [the later] Rawls, he does not assume that they are fellow citizens.” Unlike Rawls, that is,
“[Kant] does not presuppose any determinate social or political structures [hence its a priori character] not even the nexus of fellow citizens within a bounded, democratic society. Kant’s constructivism, therefore, begins with weaker assumptions than Rawls’s relies on; it begins simply with the thought that a plurality of agents [conspicuous for their capacity for rationality] lacks antecedent principles of coordination, and aims to build an account of reason, of ethics, and specifically of justice on this basis. [….] The formula of universal law proposes as the test of ethical adequacy simply that agents adopt principles which (they take it) could be adopted by, willed by, all others. As Kant puts it, a conception of the reasonable which addresses ‘the public in the strict sense, that is, the world,’ rather than the restricted public of a particular society or state. Kant’s public is not the Rawlsian public, consisting only of fellow citizens in a bounded, liberal democratic society: it is unrestricted. Hence, Kant’s conception of ethical method takes a cosmopolitan rather than an implicitly statist view of the scope of ethical concern; correspondingly, he takes a more demanding view of the construction of ethical principles in that he conceives of justification as aiming to reach all others without restriction.” (Please see O’Neill’s essay, ‘Constructivism in Rawls and Kant,’ in Samuel Freeman, ed., The Cambridge Companion to Rawls, 2003: 362; cf. too the critique of the later Rawls’s ‘Kantian conventionalism’ or ‘cultural relativism’ in T.K. Seung’s Intuition and Construction: The Foundation of Normative Theory, 1993)
Which brings me to the claim that Rawls proferred an “intuitive account of our own deep intuitions about justice,” which is not the way Rawls himself would have characterized his coherentist justification of the principles of justice which sought vindication through the constructive procedure of the “original position.” A conspicuous feature of “reflective equilibrium” for Rawls in the Theory of Justice is its putative distance from intuitionism, “rational” or “philosophical.” Now it may very well be the case that our “considered judgments” and “considered moral convictions” originate, in the first instance, in moral intuitions or are somehow indissolubly tied to intuitions of some sort, but the notion of reflective equilibrium is epistemically and methodologically at some remove from such intuitions, at the very least, they don’t play the “foundational” or axiomatic role they do in prior theories of rational intuitionism, which allow for inferences or deductions from basic metaphysical or moral truths not subject to logical proof (yet it will not do to characterize these as merely ‘arbitrary’). Rawls’s method here is thus rightly described, unlike that of rational intuitionism, as “non-foundationalist,” admitting moral judgments and principles of varying degrees or levels of generality. In Political Liberalism, however, and as Samuel Freeman has pointed out, reflective equilibrium is now considered at least compatible with rational intuitionism and other “foundationalist views:” “Rather than contrasting reflective equilibrium with foundationalist positions like rational intuitionism, Rawls in later works instead contrasts such positions with CONSTRUCTIVISM in moral and political philosophy.”
Lastly, it was Kant himself and thus not Rawls who first “cashed out” the notion of moral autonomy and human dignity “in terms of respect for persons” qua persons.
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