Immanuel Kant had a conception of the popular will that was very similar to Rousseau’s, yet Kant ascribed a much narrower set of powers to the state.

Chris W. Surprenant is an associate professor of philosophy at the University of New Orleans, where he directs the Alexis de Tocqueville Project in Law, Liberty, and Morality. He is the author of Kant and the Cultivation of Virtue (Routledge 2014), co‐​editor of Kant and Education: Interpretations and Commentary (Routledge 2012), and has published numerous journal articles in moral and political philosophy.

He holds a BA in philosophy and government from Colby College, and a PhD in philosophy from Boston University.

In my last piece examining Kant’s discussion of the virtues central to a free society, I claimed that for Kant what justifies sovereign authority is that the sovereign’s actions are supposed to represent the united will of the people. Here, I want to expand on this topic and more carefully examine Kant’s justification for sovereign authority and the conditions under which he believes coercion is justified. This discussion should be of interest to anyone who believes that the justification for state authority (if it can be justified) is connected to its ability to best promote individual well‐​being by securing each citizen’s freedom.

The relevant passage on sovereign authority comes from the Metaphysics of Morals at pages 313 and 314 of the Akademie text. There, Kant writes:

The legislative authority can belong only to the united will of the people. For since all right is to proceed from it, it cannot do anyone wrong by its law. Now when someone makes arrangements about another, it is always possible for him to do the other wrong; but he can never do wrong in what he decides upon with regard to himself (for volenti non fit iniuria [no wrong is done to someone who consents]). Therefore only the concurring and united will of all, insofar as each decides the same thing for all and all for each, and so only the general united will of the people, can be legislative.

This passage seems straightforward enough: Legislative or sovereign authority is legitimate when it stems from the united will of the people. Whatever laws are implemented under those conditions are consistent with right because everyone has consented to them, and no wrong is done to an individual by an action that he consents to (even if it harms him or otherwise makes him worse off).

But what is the “united will of the people” and how do we identify it? Kant does not believe that the united will is equivalent to unanimous agreement or that every citizen must directly voice support for a particular law in order for that law to be legitimate. How, then, is it possible to arrive at a “concurring and united will of all” when there is disagreement, perhaps unresolvable, between individual members of a community?

Here, Rousseau’s influence plays a significant role in Kant’s discussion of the “concurring united will of all.” For Rousseau, when individuals encounter natural obstacles that they cannot overcome alone, they are presented with the following problem: perish, or “find a form of association that may defend and protect with the whole force of the community the person and property of every associate, and by means of which each, joining together with all, may nevertheless obey only himself, and remain as free as before” (SC vi.4, p. 54).

Rousseau’s solution is that “[e]ach of us puts in common his person and all his power under the supreme direction of the general will; and in return each member becomes an indivisible part of the whole.” So what is created is a “public person, which is thus formed by the union of all the individual members,” and each member has an equal voice (i.e., vote) in determining the actions of this public person. Since this entity is nothing other than the collected will of the people, and since each individual joined this whole to overcome freedom‐​limiting problems that they could not overcome alone and which could be overcome only through coordinated action, “whoever refuses to obey the general will shall be constrained to do so by the whole body: which means nothing else than that he shall be forced to be free” (SC vii.8, p. 58).

Setting aside the various practical problems such as how individuals contract in and whether or not tacit consent counts, there is still something unsatisfying about a position that claims to maximize individual freedom by considering individual persons as “an indivisible part of the whole” and that individuals who “refuse to obey the general will shall be constrained to do so.” Perhaps such a position makes sense when it comes to practical, coordination matters (e.g., driving on the right side of the road), but it seems to run inconsistent with human freedom on moral, cultural, or religious issues (e.g., mandatory church attendance).

Kant seems to have recognized these concerns. Although he appears to adopt an understanding similar to Rousseau as to what counts as “the united will of the people” and how it is represented, Kant seems to place severe restrictions on the justification of the use of coercive force by a sovereign against the citizens.

In his “Theory and Practice” essay, Kant claims that inside civil society only the head of state maintains the right to use coercive force:

[W]hoever is subject to laws is a subject within a state and is thus subjected to coercive right equally with all the other members of the commonwealth; only one (physical or moral person), the head of state, by whom alone any rightful coercion can be exercised, is excepted. (TP 8:291)

But Kant limits this use of rightful coercive force in a somewhat surprising way. He argues in the Metaphysics of Morals that coercive force is legitimate only when used to hinder hindrances to freedom:

[I]f a certain use of freedom is itself a hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is opposed to this (as a hindering of a hindrance to freedom) is consistent with freedom in accordance with universal laws, that is, it is right. Hence there is connected with right by the principle of contradiction an authorization to coerce someone who infringes upon it. (MM 6:231)

More simply put: the use of coercion against an individual is justified only as a defensive mechanism against that individual when he is acting in a manner that unjustly limits the freedom of other individuals and justified only to the extent that it prevents that interference.

The challenge for any would be libertarian‐​leaning Kantian is how to reconcile this discussion of coercion with his comments on taxation, which contemporary libertarians frequently view as a form of coercion. Kant writes that the state has “the right to impose taxes on the people for its own preservation, such as taxes to support organizations providing for the poor, foundling homes, and church organizations” (MM 6:236), and that a citizen “cannot refuse to pay taxes imposed upon him” (E 8:37).

But it’s not at all obvious why the state possess “the right to impose taxes on people for its own preservation,” never mind how taxes for the purpose of supporting “the poor, foundling homes, and church organizations” is consistent with this objective. My next post will examine Kant’s discussion and justification of taxation, as well as whether or not his position on this topic is consistent with his views of coercion discussed here and forwarded elsewhere in his moral and political writing.

Works Cited

Kant, I., What is Enlightenment? (E), in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, trans. by Mary Gregor, Cambridge: Cambridge University Press, 1999.

______, The Metaphysics of Morals (MM), in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, trans. by M. Gregor, Cambridge: Cambridge University Press, 1999.

______, “On the Common Saying: That may be correct in theory, but it is of no use in practice” (TP), in The Cambridge Edition of the Works of Immanuel Kant: Practical Philosophy, trans. by M. Gregor, Cambridge: Cambridge University Press, 1999.

Rousseau, J-J., The Social Contract (SC), trans. by Christopher Betts, Oxford University Press, 1994.