Smith explains Kant’s basic justification of government and why he opposed the rights of resistance and revolution.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In a previous essay I noted Kant’s opposition to the rights of resistance and revolution against an established government, regardless of how tyrannical that government may be. I also mentioned that this opposition was closely linked to Kant’s conception of the social contract, which he treated as an “Idea of reason,” or what we would call a theoretical ideal. Whether or not a social contract ever actually occurred, whether or not men ever agreed to leave a state of nature and voluntarily unite themselves in a civil society ruled by a common sovereign government was, for Kant, an irrelevant matter of history. Indeed, Kant even viewed the state of nature itself as a theoretical construct; the historical reality of a state of nature was irrelevant to Kant’s political theory, as was the historical reality of a social contract.

An important thing to keep in mind about Kant’s a priori approach to political theory is his belief that reason alone is far better able to arrive at clearly defined moral and political principles than is any empirical generalization based on the supposed lessons of history. This is one reason Kant criticized those rulers who, when deciding on policies that might violate individual rights, insist that they are unable to reach a definite conclusion until they study the available empirical data about the likely impact of the proposed policy on the happiness of subjects. This is a completely wrong approach with potentially dangerous consequences, according to Kant, who repeatedly warned against the “serpentine” windings of utilitarian calculations as a basis for political decisions. The lessons of experience will be interpreted in different ways by different people, and the notion of “happiness” is far too vague and variable to provide a stable standard for political decision making. Those rulers who attempt to ground legislation on happiness rather than on rights will inevitably judge “happiness” by their own subjective standards, and this in turn will lead to a paternalistic government. As I wrote in a previous essay in this series:

Kant was resolutely opposed to paternalistic governments. A government that views subjects as a father views his children, as immature beings who are incompetent to decide for themselves what is good or bad for them and dictates instead “how they ought to be happy” is “the worst despotism we can think of.” Paternalism “subverts all the freedom of the subjects, who would have no freedom whatsoever.”…The sovereign who “wants to make people happy in accord with his own concept of happiness…becomes a despot.” (“On the Proverb: That May be True in Theory, But Is Of No Practical Use,” in Perpetual Peace and Other Essays, trans. Ted Humphrey, Hackett, 1983. pp. 73 & 81).

Justice, or the protection and enforcement of individual rights (especially the “innate” right to individual freedom), is at once the proper purpose of an ideal government and the standard by which a government should determine proper legislation. Kant applied this reasoning down the line, even to matters of punishment. Unlike Locke and others in his tradition, Kant maintained that individuals would not possess the right to punish in a state of nature. The right to punish is an emergent power that can exist only in a civil society with a rule of law enforced by a government. (Kant’s defense of this position, which is also found in the writings of Samuel Pufendorf and some other natural‐​law philosophers, is not very persuasive.) Moreover, the retribution involved in punishment should be determined by the standards of justice alone, without any consideration for its social consequences, such as the effect that a particular punishment might have in deterring other potential criminals.

Thus far there is little in Kant’s conception of an ideal government to which other classical liberals (or limited‐​government libertarians) would have objected, even if they disagreed with his method of justifying an ideal limited government. Quoting the distinguished sociologist Robert Nisbet, who was himself a classical liberal, “we cannot doubt the highly liberal nature of Kant’s own view of the state.” Nisbet continued:

There is really little difference between the kind of state that Kant describes as just and the kind we have seen existing in the thinking of Turgot and Adam Smith. Any serious limitation of what Kant calls the individual’s “civil liberty” would carry with it, he tells us in concrete terms, malignant implications to economic prosperity. There must be on every count—moral and political as well as economic—a maximum of autonomy granted the individual in all areas of life. (History of the Idea of Progress, Basic Books, 1980, pp. 222–23.)

Despite this similarity, virtually every classical liberal would have objected to two key points Kant’s approach, mentioned above—namely, his interrelated claims that we are morally obligated to obey every law authorized by a government, no matter how unjust a law may be; and his argument that any violent resistance to a government is absolutely prohibited, no matter how tyrannical a government may be. I confess that I find Kant’s arguments for both positions so full of holes that they can be difficult to summarize in a coherent fashion. But in accord with my belief that we should always attempt to present the arguments of an important philosopher in the strongest possible terms, however much we may disagree with those arguments, I shall do the best I can for Kant. Let’s begin with some features of Kant’s defense of a theoretical social contract in which individual consent, though hypothetical rather than real, serves to bind every person, morally speaking, to the established government of his or her country.

Kant’s Justification of Government

Among the necessary requirements that must be satisfied before I can legitimately claim an external object as my private property is the exercise of my will. No one can compel me to accept as my property something that I didn’t previously own; I must will this to be so, according to Kant.

Starting with this role of the will in acquiring property, Kant called attention to a very interesting issue. By my act of will, and mine alone, I can morally obligate everyone else in society (indeed, in the entire world) to respect my decisions regarding my property. And this moral right is also an enforceable moral claim, one that permits me to use physical force against those who attempt to violate my property rights.

So how is it that my singular will can obligate everyone else to follow my desires regarding my property? Kant regarded this question as among the most the most important and difficult problems in political philosophy. As I explained in an earlier essay, Kant argued that the right to use force in defense of a (juridical) right is an essential element in the original right itself. It is not as if the right to use defensive force is somehow tacked on to the original right and justified with a separate argument. Rather, our right to use force in defense of our rights is integral to what we mean by “a right” in the first place. Thus to claim a right to use and dispose of our property is simultaneously to claim a right to use force against those who attempt to violate this moral claim.

From this inseparable relationship between a rights‐​claim and the legitimate power to enforce that claim, it follows that a right that can never be enforced by impartial means lacks a key ingredient of the concept. A just society demands more than that legitimate claims about property rights be widely accepted; a just society also requires a reasonably reliable mechanism that can enforce our rights. It is not enough for me to say “I have a right to X” for justice to be realized. Justice also requires that I and others be able to enforce our rights against violators. I may claim all the rights I like, and those claims may be perfectly legitimate, but if criminals live in a society where they can steal with impunity or murder with no fear of punishment, then, in Kant’s view, that society would not qualify as a just society. Here we have the substance of Kant’s point that property rights in a state of nature would be provisional and that only in a civil society can those selfsame rights qualify as juridical. In other words, since a state of nature without government would lack objective laws, all rights in a state of nature, though theoretically applicable, would lack an impartial mechanism of enforcement and would therefore lack an essential feature of what we mean by “a right.”

Moreover, as Kant understood his own Categorical Imperative, I may claim rights for myself only if I recognize the equal rights of everyone else. And since to claim a right for myself is simultaneously to claim my right to use force against anyone who seeks to violate that right, this entails that I must acknowledge the equal right of others to use force against me should I attempt to violate their rights. Rights, in short, require reciprocity by all members of a society, which includes the understanding that others may legitimately use force against me if I attempt to violate their rights. But the impartial enforcement of rights is a mere will-o’-the-wisp in a state of nature that lacks the rule of law, so others may coerce me to become subject to a state in which we find the rule of law. This subjection to an existing government, even without my “empirical” consent, is a dictate of practical reason. It is logically demanded of me because unless I submit to a government that protects the rights of everyone, I cannot claim any rights for myself. It may therefore be said that in asserting my right to freedom, I have simultaneously agreed, if only in a theoretical sense, to obey the decrees of a government whose job it is to protect the rights of every person within its jurisdiction. (Kant’s position on this matter, it should be noted, is not a theory of tacit consent, but it may be characterized as a theory of implied consent, if we interpret “implied” in a logical sense.)

I’m afraid this is the best I can do, for good or ill, in attempting to summarize Kant’s basic justification of government, and why his theoretical version of the social contract does not require the real consent of individuals, who should be compelled to become members of a political society. But there is an obvious problem here when we consider Kant’s claim that we are morally obligated to obey every law of every government, including the unjust laws of tyrannical governments. Even if we agree that people may properly be compelled to obey a rule of law, as enforced by a just government, when laws are designed to protect the individual’s right to freedom, it does not necessarily follow that we are similarly obligated to obey the unjust laws of a tyrannical government.

The Rights of Resistance and Revolution

Kant appeals to his Categorical Imperative—which demands that all moral principles be universalizable—to support his opposition to the rights of resistance and revolution. Government, whose primary purpose is to secure individual rights by enacting and enforcing objective laws, must be “unopposable.” This means that a government may rightfully suppress “all internal resistance” (including seditious speech) “for such resistance would have to derive from a maxim that, if made universal, would destroy all civil constitutions, thus annihilating the only state in which men can possess rights.” The unacceptable maxim that Kant had in mind, which was also invoked by Jeremy Bentham and other liberals who opposed the rights of resistance and revolution, may be summarized as follows: If I claim a right forcibly to resist a law that I regard as unjust, then I must be willing, per the Categorical Imperative, to grant the same right to everyone else. According to the universal maxim implicit in the rights of resistance and revolution, therefore, every individual would have the right to disobey and ultimately to resist any law that he or she personally regards as unjust or oppressive. But this maxim would contradict the very foundation of political sovereignty, according to which only the sovereign has the right to render final, binding, and enforceable decisions about when force is appropriate in particular situations. Here is how Kant put this point:

[A]ll resistance to the supreme legislative power [the true sovereign, in Kant’s theory], all incitements of subjects actively to express discontent, all revolt that breaks forth into rebellion is the highest and most punishable crime in a commonwealth, for it destroys its foundation. And this prohibition is absolute, so 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 authorized the government to proceed in a thoroughly brutal (tyrannical) fashion, the citizen is nonetheless not to resist him in any way whatsoever. This is because under an already existing civil constitution the people no longer have the right to judge and to determine how the constitution should be administered. For suppose they had such a right and, indeed, that they opposed the actual judgment of the nation’s leader, then who would determine on which side the right lies? Neither of them can serve as judge in his own case. Thus, there would still have to be another head above the head to decide between the latter and the people—and that is contradictory.

This argument, according to which citizens are morally obligated not to resist even the decrees of a tyrant, pretty much placed Kant in a category by himself among classical liberals. Even those classical liberals, such as David Hume and Adam Smith, who rejected social contract theory and consequently opposed the rights of resistance and revolution as theoretical principles, nevertheless conceded that force may properly be used against governments that had clearly degenerated into tyranny. These conservative liberals appealed to utilitarian standards rather than to rights to determine when this point had been reached. Utilitarian liberals were almost always more conservative than their natural‐​rights cousins, but even many of the utilitarians were quite radical by modern standards. Adam Smith, for example, argued that a government which confiscates one‐​third or more of nation’s wealth (in the form of taxes) has clearly become tyrannical and is therefore ripe for revolution—a detail that shows how radical even the more conservative proponents of early liberalism tended to be. (The one‐​third test, which was invoked by a number of classical liberals, was commonly based on the observation that the feudal serf was required to surrender one‐​third of his produce to his overlord, so a citizen of a supposedly free country who is required to surrender more than one‐​third of his wealth to government is actually worse off than the lowly serf.)

According to John Locke, American Revolutionaries, and other classical liberals who defended the rights of resistance and revolution, when a king violates his part of the social contract he “unkings” himself and thereby reverts to the status of an ordinary criminal without any special political privileges. Thus to use force against this person is not to rebel against rightful authority, for a tyrant forfeited any such authority when he violated the social contract by violating rights (especially inalienable rights) instead of protecting them. In this view, to resist the decrees of a tyrant amounts to nothing more than to exercise one’s fundamental, inalienable right of self‐​defense against anyone who uses unjust force. The rights of resistance and revolution were thus seen as the application of the right of self‐​defense to the political sphere. No one, not even a political sovereign, has the right to enforce tyrannical measures, so we may legitimately defend ourselves against a tyrant, just as we may legitimately use force in self‐​defense against a common thug who attacks us on the street. The tyrant is the true “rebel,” for it is he who has rebelled against the natural‐​law principles of justice that a legitimate ruler is obligated to respect.

Immanuel Kant rejected this line of reasoning, root and branch. His argument that we are morally obligated to obey the rights‐​protecting laws of a just government, even if we have not personally agreed to obey that government, is reasonable enough on its face, at least in some cases. It would be difficult, after all, to make the case that a murderer may not be prosecuted by a just government that respects an impartial rule of law unless the murderer has previously given his consent to the government that prosecutes him. To require consent in this case would mean, in effect, that we could not legitimately prosecute or punish a murderer unless that criminal has previously agreed to let us punish him. But Kant muddied the waters even in simple cases like this with his theoretical model of the social contract, which he used to justify an obligation to obey even the unjust laws of a tyrannical government. I shall explore this problem in more detail in my next and (hopefully) final installment of my series on Kant. I may also touch on a few side issues, such as Kant’s position on whether animals have rights.