Excerpt from Kant’s “Theory and Practice”

II ON THE RELATIONSHIP OF THEORY TO PRACTICE IN POLITICAL RIGHT [STAATSRECHT]

(Against Hobbes)⁸

Among all the contracts by which a large group of men unites to form a society (pactum sociale), the contract establishing a civil constitution (pactum unionis civilis) is of an exceptional nature. For while, so far as its execution is concerned, it has much in common with all others that are likewise directed towards a chosen end to be pursued by joint effort, it is essentially different from all others in the principle of its constitution (constitutionis civilis). In all social contracts, we find a union of many individuals for some common end which they all share. But a union as an end in itself which they all ought to share and which is thus an absolute and primary duty in all external relationships whatsoever among human beings (who cannot avoid mutually influencing one another), is only found in a society in so far as it constitutes a civil state, i.e. a commonwealth. And the end which is a duty in itself in such external relationships, and which is indeed the highest formal condition (conditio sine qua non) of all other external duties, is the right of men under coercive public laws by which each can be given what is due to him and secured against attack from any others.

But the whole concept of an external right [Rechts] is derived entirely from the concept of freedom in the mutual external relationships of human beings, and has nothing to do with the end which all men have by nature (i.e. the aim of achieving happiness) or with the recognised means of attaining this end. And thus the latter end must on no account interfere as a determinant with the laws governing external right. Right is the restriction of each individual’s freedom so that it harmonises with the freedom of everyone else (in so far as this is possible within the terms of a general law). And public right is the distinctive quality of the external laws which make this constant harmony possible. Since every restriction of freedom through the arbitrary will of another party is termed coercion, it follows that a civil constitution is a relationship among free men who are subject to coercive laws, while they retain their freedom within the general union with their fellows. Such is the requirement of pure reason, which legislates a priori, regardless of all empirical ends (which can all be summed up under the general heading of happiness). Men have different views on the empirical end of happiness and what it consists of, so that as far as happiness is concerned, their will cannot be brought under any [74] common principle nor thus under any external law harmonising with the freedom of everyone.

The civil state [bürgliche Zustand], regarded purely as a lawful state [rechtlicher Zustand], is based on the following a priori principles:

The freedom of every member of society as a human being.

The equality of each with all the others as a subject.

The independence of each member of a commonwealth as a citizen.

These principles are not so much laws given by an already established state [Staat], as laws by which a state can alone be established in accordance with pure rational principles of external human right. Thus:

1. Man’s freedom as a human being, as a principle for the constitution of a commonwealth, can be expressed in the following formula. No-one can compel me to be happy in accordance with his conception of the welfare of others, for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others to pursue a similar end which can be reconciled with the freedom of everyone else within a workable general law – i.e. he must accord to others the same right as he enjoys himself. A government might be established on the principle of benevolence towards the people, like that of a father towards his children. Under such a paternal government (imperium paternale), the subjects, as immature children who cannot distinguish what is truly useful or harmful to themselves, would be obliged to behave purely passively and to rely upon the judgement of the head of state as to how they ought to be happy, and upon his kindness in willing their happiness at all. Such a government is the greatest conceivable despotism, i.e. a constitution which suspends the entire freedom of its subjects, who thenceforth have no rights whatsoever. The only conceivable government for men<who are capable of possessing rights> [der Rechte fahig sind], even if the ruler is benevolent, is not a paternal but a patriotic government (imperium non paternale, sed patrioticum). A patriotic attitude is one where everyone in the state, not excepting its head, regards the commonwealth as a maternal womb, or the land as the paternal ground from which he himself sprang and which he must leave to his descendants as a treasured pledge. Each regards himself as authorised to protect the rights of the commonwealth by laws of the general will, but not to submit it to his personal use at his own absolute pleasure. This right of freedom belongs to each member of the commonwealth as a human being, in so far as each is a being capable of possessing rights.

2. Man’s equality as a subject might be formulated as follows. Each member of the commonwealth has rights of coercion in relation to all the [75] others, except in relation to the head of state. For he alone is not a member of the commonwealth, but its creator or preserver, and he alone is authorised to coerce others without being subject to any coercive law himself. But all who are subject to laws are the subjects of a state, and are thus subject to the right of coercion along with all other members of the commonwealth; the only exception is a single person (in either the physical or the moral sense of the word), the head of state, through whom alone the rightful coercion of all others can be exercised. For if he too could be coerced, he would not be the head of state, and the hierarchy of subordination would ascend infinitely. But if there were two persons exempt from coercion, neither would be subject to coercive laws, and neither could do to the other anything contrary to right, which is impossible.

This uniform equality of human beings as subjects of a state is, however, perfectly consistent with the utmost inequality of the mass in the degree of its possessions, whether these take the form of physical or mental superiority over others, or of fortuitous external property and of particular rights (of which there may be many) with respect to others. Thus the welfare of the one depends very much on the will of the other (the poor depending on the rich), the one must obey the other (as the child its parents or the wife her husband), the one serves (the labourer) while the other pays, etc. Nevertheless, they are all equal as subjects before the law, which, as the pronouncement of the general will, can only be single in form, and which concerns the form of right and not the material or object in relation to which I possess rights. For no-one can coerce anyone else other than through the public law and its executor, the head of state, while everyone else can resist the others in the same way and to the same degree. No-one, however, can lose this authority to coerce others and to have rights towards them except through committing a crime. And no-one can voluntarily renounce his rights by a contract or legal [rechtliche] transaction to the effect that he has no rights but only duties, for such a contract would deprive him of the right to make a contract, and would thus invalidate the one he had already made.

From this idea of the equality of men as subjects in a commonwealth, there emerges this further formula: every member of the commonwealth must be entitled to reach any degree of rank which a subject can earn through his talent, his industry and his good fortune. And his fellow subjects may not stand in his way by hereditary prerogatives or privileges of rank and thereby hold him and his descendants back indefinitely.

All right consists solely in the restriction of the freedom of others, with the qualification that their freedom can co-exist with my freedom within [76] the terms of a general law; and public right in a commonwealth is simply a state of affairs regulated by a real legislation which conforms to this principle and is backed up by power, and under which a whole people live as subjects in a lawful state[rechtlichen Zustand] (status iuridicus). This is what we call a civil state, and it is characterised by equality in the effects and counter-effects of freely willed actions which limit one another in accordance with the general law of freedom. Thus the birthright of each individual in such a state (i.e. before he has performed any acts which can be judged in relation to right) is absolutely equal as regards his authority to coerce others to use their freedom in a way which harmonises with his freedom. Since birth is not an act on the part of the one who is born, it cannot create any inequality in his legal position[rechtlichen Zustandes] and cannot make him submit to any coercive laws except in so far as he is a subject, along with all the others, of the one supreme legislative power. Thus no member of the commonwealth can have a hereditary privilege as against his fellow-subjects; and no-one can hand down to his descendants the privileges attached to the rank he occupies in the commonwealth, ‘nor act as if he were qualified as a ruler by birth and forcibly prevent others from reaching the higher levels of the hierarchy (which are superior and inferior, but never imperans and subiectus) through their own merit. He may hand down everything else, so long as it is material and not pertaining to his person, for it may be acquired and disposed of as property and may over a series of generations create considerable inequalities in wealth among the members of the commonwealth (the employee and the employer, the landowner and the agricultural servants, etc.). But he may not prevent his subordinates from raising themselves to his own level if they are able and entitled to do so by their talent, industry and good fortune. If this were not so, he would be allowed to practise coercion without himself being subject to coercive counter-measures from others, and would thus be more than their fellow-subject. No-one who lives within the lawful state [rechtlichen Zustande] of a commonwealth can forfeit this equality other than through some crime of his own, but never by contract or through military force (occupatio bellica). For no legal [rechtliche] transaction on his part or on that of anyone else can make him cease to be his own master [Eigner seiner selbst]. He cannot become like a domestic animal to be employed in any chosen capacity and retained therein without consent for any desired period, even with the reservation (which is at times sanctioned by religion, as among the Indians) that he may not be maimed or killed. He can be considered happy in any condition so long as he is aware that, if he does not reach the same level as others, the fault lies either with himself (i.e. lack of ability or serious [77] endeavour) or with circumstances for which he cannot blame others, and not with the irresistible will of any outside party. For as far as right is concerned, his fellow-subjects have no advantage over him.*

If we try to find a definite meaning for the word gracious, as distinct from kind, beneficent, protective etc., we see that it can be attributed only to a person to whom no coercive rights apply. Thus only the head of the state’s government, who enacts and distributes all benefits that are possible within the public laws (for the sovereign who provides them is, as it were, invisible, and is not an agent but the personified law itself), can be given the title of gracious lord, for he is the only individual to whom coercive rights do not apply. And even in an aristocratic government, as for example in Venice, the senateis the only ‘gracious lord’. The nobles who belong to it, even including the Doge (for only the plenary council is the sovereign), are all subjects and equal to the others so far as the exercise of rights is concerned, for each subject has coercive rights towards every one of them. Princes (i.e. persons with a hereditary right to become rulers) are themselves called gracious lords only with future reference, an account of their claims to become rulers (i.e. by courtly etiquette, par courtoisie). But as owners of property, they are none the less fellow-subjects of the others, and even the humblest of their servants must possess a right of coercion against them through the head of state. Thus there can be no more than one gracious lord in a state. And as for gracious (more correctly distinguished) ladies, they can be considered entitled to this appellation by their rank and their sex (thus only as opposed to the male sex), and this only by virtue of a refinement of manners (known as gallantry) whereby the male sex imagines that it does itself greater honour by giving the fair sex precedence over itself.