Book Review: Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy
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.
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.