Kant and the Problem of Democratic Legitimacy

Lars Vinx, Bilkent University

Introduction

Interpreters of Immanuel Kants political philosophy have often noted a tension between Kants endorsement of what seem to be democratic principles of legitimacy on the one hand and his explicit denial of any limits on the legal powers of non-democratic forms of government. In his Rechtslehre, Kant claims that the legislative authority can belong only to the united will of a people. [457]1 His reinterpretation of the doctrine of the original contract consequently leads to a criterion of practical correctness for positive law that sounds democratic: a legislator is under a duty to give his laws in such a way that they could have arisen from the united will of the people [296]. Claims like these strongly suggest that Kants republicanism, as based on his conception of social contract, amounts to more than just a normative standard for the evaluation of the content of laws, however produced. And Kant indeed makes it clear that his ideal of republicanism has an institutional side, i.e. that it includes a specific institutional ordering of the political process, namely one in which laws do in fact arise from exercises of the united will of the people.2 It thus seems natural to interpret Kants advocacy of republicanism as expressing the claim that positive laws are fully legitimate if and only if they in fact originate from a democratic procedure of legislation. According to this democratic-legitimist interpretation of Kantian republicanism, Kant deserves the honor of having developed a theory of political legitimacy that shows why democratic popular sovereignty is a necessary condition of fully legitimate political rule.3 However, Kant famously denies the existence of rights of resistance towards non-democratic political regimes and he rules out the possibility of rightful revolutionary changes of the constitutional order of non-democratic states.4 Some passages in Kants political works are characterized by a strongly Hobbesian tendency. Even though the purpose of positive political rule
1

All references to Kant, unless indicated otherwise, are to Immanuel Kant, Practical Philosophy, ed. Mary J. Gregor (Cambridge 1996). However, I often had to modify the translations as I went along on the basis of the Weischedel-text since the English text is riddled with mistakes that corrupt the meaning of the text. 2 See for example 52 of the Metaphysics of Morals [480-481] and the distinction between republicanism in spirit and letter. 3 This view has been defended most forcefully by Ingeborg Maus, Zur Aufklrung der Demokratietheorie. Rechts- und demokratietheoretische berlegungen im Anschlu an Kant (Frankfurt am Main 1992). 4 See Kant, Metaphysics of Morals, 461-466.

for Kant is clearly related to the goal of approximating republicanism, the legal validity of positive law in Kant and with it our duty to obey it - does not seem to depend on whether a political system actually lives up to this goal or not. In several passages in his political works, Kant argues in the following way: The existence of a functioning legal system is always morally preferable to a state of nature. The existence of a functioning legal system, in turn, requires that this system be sovereign in something like the Hobbesian sense. Natural laws can gain effectiveness only if they are positivized by empirically existing political authorities that have the undisputed power to take final decisions concerning the content of the laws. But the existence of a functioning legal system does not require that legislative decisions be taken democratically. As a result, we have an unconditional duty to obey the positive law of any positive legal system that ends the state of nature.5 Kant, in other words, seems to be committed to an indifference thesis with regard to the influence of constitutional form on political legitimacy: The laws of every political system that successfully ends the state of nature are binding, regardless of its constitutional form. The case for attributing the indifference thesis to Kant does not rest solely on an acknowledgment of Hobbess influence on Kant. It seems to be required by a certain reading of Kantian contractualism itself. At times, Kant unequivocally claims that the idea of the social contract is to be understood primarily as a normative standard of excellence for positive laws; a standard that can guide legislators in taking legislative decisions and that can be used to assess the practical correctness of legislative decisions in any legal system, democratic or not.6 If the idea of the social contract is to function in this way, the question whether a positive law is such that it could have arisen from the united will of the people cannot be answered by looking at how it was in fact produced. If we had to look at how a law was in fact produced in order to find out whether it is such that it could have arisen from the will of the people, the idea of social contract would not be able to guide a legislator who is yet to decide what law to enact. What is more, the idea of social contract would then be unable to serve as a standard for the evaluation of laws that were in fact produced democratically. For these reasons, it must be possible to answer the question whether a law is such that it could have arisen from the will of the people by applying some procedure-independent normative standard. Moreover, this procedure-independent standard should in principle be available to any reasonable
See ibid. for several examples. I will not explicitly discuss the question of what is involved in the existence of a functioning legal/political system. I would argue that not all effective systems of social domination that would nowadays, from a positivist point of view, be called political systems would qualify as functioning legal/political systems from the point of view of those early modern theorists who do not think that democracy in the modern sense of the word is a necessary condition of the existence of a functioning political system. 6 This point is emphasized in the work of Wolfgang Kersting. See for example Wolfgang Kersting, Wohlgeordnete Freiheit. Immanuel Kants Rechts- und Staatsphilosophie (Frankfurt am Main 1993) 448-454 and Wolfgang Kersting, Die politische Philosophie des Gesellschaftsvertrags (Darmstadt 1994) 204.
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person willing to take an impartial point of view. Hence, there seems to be no Kantian reason to deny that a monarchy, notwithstanding its non-democratic procedures of legislation, could in principle govern its citizens by laws which are such that they could have arisen from the will of the people, namely on the condition that the monarch is willing to make sure that his legislative decisions conform to the idea of social contract.7 If this second of the two approaches to Kants contractualism outlined above is the correct one, we will have to acknowledge a split in Kant between a basically Hobbesian theory of legitimacy or legal bindingness on the one hand and the ideal of republicanism or popular sovereignty on the other. Actual democratic procedures of legislation are neither a necessary for legitimacy, since laws will bind us as soon as the legal system manages to end the state of nature, nor are they necessary for the laws to have normative excellence, since laws can be such that they could have arisen from the will of the people even without having been enacted democratically. As a result, we will be unable to explain why republicanism (or in modern terms: representative democracy) is to be considered as a superior constitutional form by either arguing that republicanism is a necessary condition of legitimacy or by arguing that it is a necessary condition for the existence of just laws. However, it cannot be denied that Kant thought that there is a qualitative difference between republicanism and other forms of government on the institutional level and that he was committed to a rejection of the indifference thesis in its general form, which holds that there is nothing to choose between constitutional orderings that equally sufficed to end the state of nature. The obvious strategy to justify a rejection of this general version of the indifference thesis, while holding on to the view that the idea of social contract is to be understood as a procedure-independent standard of the correctness of legislative decisions, is to argue that institutional republicanism will either guarantee or at least maximize the likelihood that legislative decisions produced by the legal system will conform to the idea of social contract as a procedure-independent standard. If Kantian institutional republicanism can be understood along such lines, it will be possible for the Kantian to avoid the indifference thesis without having to deny the conceptual independence of the rational origin of legislation from any historical procedure of legislation. In this paper, I will argue that it would be wrong to interpret Kant as a proponent of democratic legitimism, i.e. as holding the view that democratic procedures are necessary to endow political decisions with legitimacy. As a result, Kant is committed to defending institutional republicanism as a framework that will ensure or maximize conformity of legislative decisions with the procedure-

See Kants praise for Frederick II of Prussia in Toward Perpetual Peace, 324-325.

independent standard of correctness implied by the social contract. However, I do not believe that this solution to the problem of indifference is viable for us. Kant, for reasons I will discuss, is forced to give a very strong reading to the claim that institutional republicanism will bring about substantive correctness of legislative outcomes. This strong reading rests on implicit empirical assumptions that strike me as quite implausible, at least from a contemporary point of view. As a result, Kantian political philosophy is not only unable to show why democracy is a requirement of political legitimacy. I suspect that it fails to defeat constitutional indifferentism. If we are interested in defending the view that democracy is the best constitutional form, Kants political philosophy may not be of much help.

Kant and Procedural Legitimacy

Most people nowadays would probably agree that it is a necessary condition of the legitimacy of political rule that it be exercised democratically or in accordance with democratically created norms. Non-democratic forms of government are usually not even considered to be candidates for political legitimacy. Of course, understandings of what democracy is and why it legitimizes political rule (while other forms of government do not) differ over a wide range of positions. Let me therefore very briefly explain what I understand by democracy and legitimacy. I take democracy to be a distinctive form of taking collectively binding decisions. In a democracy, the legislative procedures give (almost) all subjects equal rights of public political deliberation and participation in the decision-making processes that ultimately result in positive law. I will say that legislative decisions are legitimate if and only if we have reason to accept their results as binding even in cases where those results fail to conform to the procedure-independent standards (whatever they are) for good deciding that ought to have guided the legislators. A believer in democratic legitimacy, then, is someone who claims that a democratically enacted law is binding, at least within certain limits, even if it results from a mistaken or unreasonable legislative decision (or if he reasonably believes that it does). He will argue, for instance, that we are under a moral duty, at least within certain limits, to obey a democratically created law concerning taxation even if we personally (and perhaps rightly) judge that it fails to distribute the burdens of taxation in a fully equitable way. But he will deny that we would have a moral duty to obey if the same law were handed down to us as the command of a dictator.

The most important function of arguments from legitimacy consists in their ability to provide common reasons for action in cases in which our individual 1st-order opinions about what ought to be done diverge. Invocations of legitimacy accomplish this task by replacing 1st-order opinions concerning what ought to be done with a reference to the procedural origins of a norm. Once it is recognized that democratically enacted laws (or laws enacted in some other way) are, at least within certain limits, to be considered as binding even by those who regard them as substantively unreasonable, we can, for the purposes of ongoing governance, bracket our substantive disagreement about what laws would be best. Of course, this form of bracketing requires that we apply the procedure we take to have legitimizing force in the real world of politics. Unless we actually go through the procedure in question it does not legitimate anything. If the rules governing procedure are to fulfill their function, they cant tell us in advance what decisions ought to be made (though they may rule out some decisions in advance). Rather, they must be understood as empowering some person or group of persons to decide what ought to be done. A laws legitimacy must therefore always be a result of the historical fact that it was enacted in a certain way. A procedural rule for taking collectively binding decisions will hardly be able to fulfill its function properly unless its results are insulated from individual disagreement. It would not make much sense to try to coordinate behavior on the basis of procedural legitimacy if individual citizens had the power to simply shrug off an obligation they have incurred under the purportedly legitimizing procedure for the mere reason that they believe they should not be held to it. This point, to repeat, must, within certain limits, apply even in cases in which people are right to think that the existing law is unreasonable or unjust in some way. If the ability of a procedure to create binding results were contingent upon whether these results meet some procedure-independent standard of practical correctness, we would have to ask who is to judge whether a particular result meets the standard in question or not. And we would be hard-pressed to deny, as democrats, that this power of judgment must inhere in individual citizens. After all, in giving legislative powers to citizens we assume that they are capable of arriving at informed judgments as to whether laws meet the practical standards (whatever they are) that ought to guide legislation. However, if the power to judge whether a law meets the relevant procedure-independent standard of practical correctness rests with individual citizens, the claim that the results of a procedure bind only if they meet the standard will entail that no citizen can ever be held to an obligation to obey a law that he claims is unreasonable, which would defeat the legitimizing purpose of democratic (or any other) political procedure. Of course, a legitimizing procedure cannot possibly be completely insulated against individual dissent. I assume that the legitimizing power of any procedure has limits, i.e. that some decisions

would not bind, due to being catastrophically unjust, even if created in accordance with a procedure that possesses legitimizing power. However, this admission seems to land us in a higher-order version of the problem we were just trying to avoid. It would seem to follow that individuals must have the power to judge whether a procedures results overstep the relevant limits. As a result, we still face the problem that the procedure will be unable to fulfill its legitimizing function, at least with respect to political disagreements that are framed as raising questions about the limits of the procedures legitimizing force. It is not my aim to offer a solution to the problem raised by this objection. But for our purposes, it is important to note that the Hobbesian theory of sovereignty, which deeply influenced Kant, can be read as a response to it. The theory of sovereignty, as I understand it, does not deny that there could be political decisions that overstep the limits of legitimate governance and that therefore fail to bind citizens. What it argues, rather, is that a state must necessarily claim that all its final decisions are legitimate or binding and that it must consequently deny its subjects any right to declare themselves free from duties of legal obedience on the basis of their private judgment. The reason for this is simple: A state that allowed its subjects to contest the legitimacy of its laws and to free themselves from duties of obedience on the basis of their private judgment would fail to end the state of nature, and a state that failed to end the state of nature could not possibly have any justified authority. That a state may decide so unreasonably as to falsify the claim that all its decisions are legitimate does not entail that the claim can or ought to be avoided. Both Kant and Hobbes agree with the idea that the state must necessarily claim absolute legitimacy. At the same time, neither of them puts the bar for a justification of the states claim to absolute legitimacy very high. In fact, both Hobbes and Kant argue that every legal system that succeeds in ending the state of nature creates a general duty to obey the law. To be sure, there are some normative constraints that are built into the notion of ending the state of nature, in particular requirements of the rule of law in a formal sense. But neither Hobbes nor Kant believed that a state has to be democratic or perfectly just in order to make a justified claim to absolute legitimacy. Of course, the argument from the state of nature is an argument for a form of procedural legitimacy. Even in a non-democratic state, citizens must be able to identify the laws they are expected to follow and their ability to do so presupposes the existence of a rule of recognition that specifies the legislative procedure whose outcomes citizens are obliged to consider as binding. In other words, the theory of sovereignty is a theory of legitimacy that denies the claim that democracy is a necessary condition of legitimacy.

At least for Kant, the aspirations of political philosophy of course do not end here. Even though conformity with positive law on the basis of Hobbesian reasons of legitimacy is generally required whenever a state succeeds in ending the state of nature, we still have to distinguish between two different reasons for such conformity. Reasonable persons living under the rule of some sovereign may find themselves in the fortunate situation that the content of the system of positive laws they are expected to conform to exactly matches the content of an ideal system of legislation, i.e. it contains all and only the laws that match the true procedure-independent standards of good legislation provided by the idea of social contract. A reasonable person would recognize that she is living under a system of positive law that matches an ideal system of legislation. Hence, she would not have to invoke procedure-based reasons of legitimacy in order to consider the laws as morally binding, and her obedience to the law would not involve deference to the potentially abusive authority of an empirical legislator. On the other hand, citizens may obviously find themselves in the less fortunate situation that the positive laws fail to match an ideal system of legislation. In this scenario, what a citizen ought to do will depend on someone elses actual and perhaps ill-conceived decisions. A reasonable person will once again recognize her situation. She will still acknowledge that she is morally bound to obey the law. But her obedience will involve deference to an empirical legislators unreasonable actual decisions and her freedom will thus be constrained in objectionable ways. Kants reformism, the aim to turn empirical political systems into truly republican systems, I will argue, has to be understood as the aim to create institutional assurance that the positive legal system (or, in other terms, the empirical sovereign) we are subjected to matches an ideal system of legislation. In such a situation, a reasonable person can safely expect always to have reason to treat the law as binding, but this reason will no longer be a reason of legitimacy. A sovereign system that has not taken on republican character on the institutional level, by contrast, falls short of this ideal, even if it happens to contain laws that match those of an ideal system of legislation. This is why the establishment of a sovereign state is not the end of Kants institutional project. For the moment, I will refrain from evaluating the viability of this institutional project and from defending my claim that we should attribute it to Kant. What I would like to argue next is that the view I have attributed to Kant so far seems to leave no room for democratic legitimism. Democratic legitimism, to recapitulate, claims that procedures of legislation have legitimizing force if and only if they are organized democratically. Within certain limits, a decision produced through democratic procedure binds even those who think, perhaps rightly, that it fails to live up to the procedureindependent normative standards that ought to guide legislative decisions.

Given the argument from the state of nature, this position appears to be unmotivated from a Kantian perspective as I have so far portrayed it. The argument from the state of nature, as we have seen, supplies legitimacy without democracy. As a result, Kantian political theory does not allow us to avoid constitutional indifferentism by claiming that a democratic constitution is necessary to produce legitimate laws. On the other hand, a political system that manages reliably to endow its legislative products with legitimacy, even if perfectly democratic, might still fall far short of realizing what I take to be Kants ideal of republicanism. If democracy should turn out to be unable to accomplish a higher goal than to make legislation legitimate, we would therefore have no Kantian reason to consider it the best constitutional form. Of course, one might reply to this that Kant was wrong to think that democracy isnt necessary for legitimacy and propose to amend the Kantian framework accordingly. But in this case, Kants republican ideal will lose its institutional footing, since the appeal to democracy has already been used up for purposes of legitimization. In order to show that democracy can achieve a higher goal than mere legitimization (and thus to show that Kant can avoid constitutional indifferentism) we need to show that there is some interesting relation between democratic procedure and practical correctness of legislative outcomes. Let me discuss a few possible proposals along such lines for how to reject constitutional indifferentism that might seem to fit into the framework I have so far attributed to Kant. The first proposal is the assurance view. According to this proposal, democratic constitutional structures will either guarantee or at least maximize the likelihood that legislative results conform to the relevant procedure-standards of practically correct legislation. These standards are taken to be reasonably clear to all reasonable persons, but their implementation in legislative decisions is seen as endangered as long as legislative procedures are structured in such a way as to give individual persons or partial groups the unchallengeable power to prefer their own interests over the common good in enacting laws that will be binding on all. Democracy, by contrast, is taken to be a system of legislation that eliminates incentives to decide in any other way than by focusing on the common good. In a non-democratic system, the laws will be such that they could have arisen from the united will of the people (or in other words: that they form part of an ideal system of legislation) only if the rulers happen to be virtuous. In a democracy, the conformity of the laws with that standard will no longer depend on the contingent presence of individual virtue on the part of legislators. The assurance view avoids constitutional indifferentism, but it does not do so by claiming that democracy is a requirement of legitimacy. Rather, the claim is that democracy is both necessary and sufficient to bring about the ideal of independence from the potentially abusive authority of empirical legislators that I have claimed animates Kants republicanism. I will attribute this view to

Kant and discuss it in a later part of this paper. For now, let me explain why I believe some other possible ways of forging a connection between democratic procedure and the practical correctness of legislative outcome should not be attributed to Kant. The second obvious way of trying to forge a link between democratic procedure and the practical correctness of results is to focus on epistemic virtues of democratic procedure. Epistemic views start out from the observation that the correct decisions to legislative problems are not necessarily obvious and that some form of public and social inquiry is needed to arrive at correct solutions to political problems. Democracy is then advocated on the basis of the claim that it is superior to all other forms of legislation in addressing this epistemic need. At least ideally, it engages every citizens own view about the matter, allows for public discussion of everyones views, and encourages voters to decide in line with their opinions as formed by public debate with others. As a result, democracy is more likely to produce legislative decisions that are practically correct than any other constitutional form. At first glance, the epistemic view appears to be a suitable way to avoid the indifference thesis within a Kantian framework. But problems show up once we take a closer look. To make my point clearer, I would like to distinguish between weak and strong epistemic views. According to the weak epistemic view, democratic procedures are more likely to create correct results than all other procedures of legislation that would also be permissible on grounds of procedural fairness. But in order to live up to this standard, democratic procedure does not have to be highly reliable in achieving correct results. In fact, defenders of weak epistemicism admit that democratic procedures will often fail to produce results that conform to the relevant procedureindependent standards of practical correctness and can be seen so to fail by reasonable persons. However, a reasonable person should nevertheless acknowledge democratically created laws as binding even if wrong, within certain limits, since there is no alternative procedure or constitutional form that will more reliably create correct results and be acceptable on grounds of fairness.8 The problem with attributing this proposal to Kant should be obvious: Democracys modest epistemic virtues are invoked to strengthen the claim that we have reason to accept democratic laws as binding even if we reasonably believe that they are practically mistaken. Weak epistemicism, in other words, is a variant of democratic legitimism and it therefore fails to fit into the Kantian framework for reasons already discussed.

See David Estlund, Democratic Authority (Princeton: UP, 2008).

Strong epistemicism, by contrast, is not a theory of legitimacy. I find it maddeningly difficult to nail down exactly what strong epistemicists are claiming. But I hope the following general characterization will do. According to strong epistemicists, correct answers to questions concerning the practical correctness of laws are inaccessible in any other way than through unconstrained and inclusive actual public discussion and consequent collective decision in a well-functioning deliberative democracy. As a result, democracy is necessarily superior to any other constitutional form in producing laws that are practically correct. I do not believe that such a view should be attributed to Kant and I find it unattractive in its own right. Let us assume that we are living in a well-functioning deliberative democracy. It would seem to follow from strong epistemicism that individual citizens do not just have a duty to consider the systems laws as binding even if mistaken. The view seems to be committed to the stronger claim that individual dissenters cannot be justified in believing that a law that was produced by the system is practically mistaken. After all, the results of actual public discussion and democratic decision are supposed to be the best indicators of practical truth. Any challenge to the practical correctness of those results would therefore have to take the form of a denial of the claim that the political system is indeed well-functioning. This, however, puts us into a highly uncomfortable position. It would appear to be rather implausible to deny that even political systems that are usually considered to be well-functioning democracies at times produce legislation that is open to justified substantive criticism. Hence, we will be able to save strong epistemicism only by putting the bar for what counts as a well-functioning democracy very high indeed. But if we put the bar high enough to save strong epistemicism, the view will justify very little. It will not likely be able to explain our conviction that democracy as it tends to actually exist, warts and all, is a superior constitutional form. Strong epistemicism, in any case, should not be attributed to Kant. As we will see in more detail later on, it openly conflicts with Kants explicit view that the procedure-independent standards of good legislation (as well as moral principles in general) are perfectly accessible to the individual reason of every citizen. Hence, strong epistemicism is not available to the Kantian who wants to avoid the indifference thesis. The preliminary conclusion I would like to draw from this discussion is the following. The only possible way to avoid the indifference thesis within the Kantian framework is to go for the assurance view. Democratic legitimism as well as epistemicism are unavailable for the purpose in all their variants. This puts severe constraints on any Kantian attempt to avoid the indifference thesis. Before I discuss the question whether these constraints doom Kantian attempts to avoid the indifference

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thesis, I have to justify my attribution of what I have called the Kantian framework to Kant on an exegetical level. I will attempt to do so in the next section of this paper.

Kants Conception of Law

Let us now turn to Kant himself. In order to defend the implicit exegetical claims I made so far, I want to take a look at the Kantian distinctions between legality and morality, ethical and juridical legislation, and natural and positive law in the Introduction to the Metaphysics of Morals. My aim is to show that Kants theory of law is indeed committed to a rejection of democratic legitimism. In the Introduction Kant describes legal duties as external duties, i.e. as requirements to act in a certain way:

Duties arising from juridical legislation can only be external duties, since this legislation does not require that the idea of this duty, which is internal, itself be the determining ground of the agents choice... [383-84, translation slightly modified] In other words, I will fulfill my legal duty as long as I act in the way required by law. It does not matter why I act in accordance with law. Even someone who does not consider the law as binding and conforms to it only out of a fear of punishment fulfills his legal duty, and in this respect legal duty differs from moral duty. Nevertheless, Kant appears to support the idea that it would be morally for us to refuse to consider valid juridical laws as binding:

It can be seen from this that all duties, just because they are duties, belong to ethics; but it does not follow that the legislation for them is always contained in ethics: for many of them it is outside ethics. [384] What Kant seems to be saying here is that any juridical duty is, in some sense, also an ethical duty, despite the fact that the law does not require us to consider it as such. And fulfilling the duty insofar as it is an ethical duty, or so it would appear, requires us to treat the juridical law in question as binding. In order to see how this claim bears on the possibility of democratic legitimism, we have to take a closer look at the way in which ethical legislation turns juridical duties into ethical duties. Kant first introduces the distinction between juridical and ethical laws in the following passage that portrays them as two kinds of laws under the general heading of moral or practical law:

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In contrast to laws of nature, these laws of freedom are called moral laws. As directed merely to external actions and their conformity to law they are called juridical laws; but if they also require that they (the laws) themselves be the determining grounds of actions, they are ethical laws, and then one says that conformity with juridical laws is the legality of an action and conformity with ethical laws is its morality. [375] Moral laws thus fall into two categories: ethical and juridical. The latter merely prescribe outer actions, they do not require that the laws themselves be the determining grounds of action according to law. Following a juridical law requires only legality, outer conformity of the law, of an action. Conformity with juridical law therefore has the property of being enforceable by sanctions that can step in as a replacement for inner motivations to act in accordance to the law. Ethical laws, on the other hand, demand that they themselves be the determining grounds of actions or in other words, that they be considered as morally binding. The intuitive idea behind the claim that juridical laws do not require such an attitude seems to be the following: whenever I act in outer conformity with a law that regulates interpersonal relations no other person would be able to complain about a breach of her rights on my part. Positive laws set by political authorities consequently do usually not require us to act on specific incentives as long as we do not break them in outer act. Selling candy to little children at a fair price because one fears for ones reputation with their parents is not a legal offense, even if it may not be a sign of an ethically well-developed character. However, it would be odd to deny that juridical laws even though they do not prescribe specific incentives and do not give rise to punishments for not acting for a specific incentive claim to be morally binding. I assume that Kant would support this idea and that he is moreover committed to the view that such claims are justified: For every legitimate juridical law a non-pathological determining ground of action in conformity with it at least has to be available (or, put differently: every juridical law has to be able to act as a non-pathological determining ground of action) if legal obedience is to be compatible with individual autonomy. If mere inclination, for instance the fear of punishment, were the only motivation for conformity with some juridical law available to a reasonable person that law would have to be regarded as a purely heteronomous influence. While a legal duty does not itself require an agent to treat it as binding, it must be possible for a reasonable person so to treat it. Hence, the existence of an outer juridical duty necessarily implies the existence of an inner ethical obligation. The analysis of juridical law in terms of legality alone is therefore essentially incomplete in the sense that the perspective of legality can never amount to a full account of the practical force of the juridical norms.

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Kants way of supplying the needed moral bindingness of juridical laws is based on the claim that the distinction between ethical and juridical laws is not to be understood as exclusive. Many practical rules belong to both groups. According to Kant, all juridical laws are, in a sense to be explained, also ethical laws (the reverse does not hold). Every form of legislation, Kant argues, consists of two elements: first, a law, which represents an action that is to be done as objectively necessary, that is, which makes the action a duty; and second, an incentive, which connects a ground for determining choice to this action subjectively with the representation of the law. [383] Ethical legislation makes an action a duty and also makes this duty the incentive. Juridical legislation, on the other hand, does not include the incentive of duty in the law and so admits an incentive other than the idea of duty [ibid.]. It is with regard to the second aspect of legislation, the setting of an incentive, that Kant thinks certain norms can belong to both legislations, namely those whose content derives from juridical legislation. Internal ethical lawgiving turns all the outer duties constituted by juridical lawgiving into indirect ethical duties and thus provides the reasonable person with a non-pathological determining ground of action. Insofar as juridical norms are adapted in this way by ethical legislation, we are required not just to act in outer conformity with them but also to treat them as binding. How can ethical legislation accomplish this adaptation? In order to discuss this question in full, we have to introduce Kants distinction between positive and natural laws that seems to be a subdivision of the category of juridical laws (I am assuming that laws whose content derives from ethical legislation cannot be positive). Kants concept of positive law is narrower than the usual contemporary understanding.

Obligatory laws for which there can be an external lawgiving are called external laws (leges externae) in general. Those among them that can be recognized as obligatory a priori by reason even without external lawgiving are indeed external but natural laws, whereas those that do not bind without actual external lawgiving (and so without it would not be laws) are called positive laws. [379] According to the contemporary use of the term, all laws that have actually been prescribed by some form of external legislation would have to be called positive laws. Within the group of positive laws in this wider sense, Kant distinguishes between those that are objectively valid juridical laws even without having been positivized by external legislation and those that are laws only in virtue of having been prescribed by an external authority acting in historical time. According to Kant, only the latter are to be called positive laws, while the former are called natural laws. To avoid confusion, I

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will henceforth refer to positive laws in Kants narrow sense as purely positive laws. The question of how ethical legislation can adapt juridical duties and turn them into ethical duties and thereby make the relevant juridical laws into laws that we ought to respect has to be answered with regard to both categories of external law, natural and purely positive. It is not clear, though, that the answer to the question can be the same in both cases. In the case of an a priori or natural juridical law the answer is straightforward: It is objectively valid because its content conforms to the principle of right, which is a variant of the categorical imperative. It is therefore clear that the existence of an outer juridical duty deriving from a priori juridical law implies the existence of an incentive supplied by ethical legislation. It would seem, though, that this explanation is not available in the case of purely positive laws in Kants sense. These, however, are the interesting cases with regard to our question of whether Kant can allow for (democratic) procedural legitimacy. The reason for this is very straightforward. If natural juridical laws are turned into external laws a Kantian moral agent will of course have reason to treat them as binding. However, from the point of view of a theory of procedural legitimacy that reason will be of the wrong kind. The bindingness of a natural law does not rest on the fact of its enactment by an empirical legislator of a certain kind. A natural law is by definition a law that would form part of an ideal system of legislation and that presumably ought to be followed even if it hadnt been explicitly enacted. Hence, its peculiar form of bindingness cannot be a form of legitimacy: it would not persist if the practical correctness of the law in question were open to reasonable doubt. The positivization of natural laws only supplies a pathological for conformity with law that is needed for those who do not acknowledge that it merits their respect. It seems that if there is anything like a conception of procedural legitimacy to be found in Kants scheme we will have to look at positive laws in the narrow sense. Immediately after the explanation of the distinction between natural and positive laws, Kant goes on to discuss the bindingness of purely positive laws. However, his remarks are very brief and there are textual problems with the passage in question. The rendering of the Cambridge Edition, the first sentence of which seems to be corrupt, goes as follows:

One can therefore contain only positive laws; but then a natural law would still have to precede it, which would establish the authority of the lawgiver (i.e. his authorization to bind others by his mere choice). [379] The Weischedel-Edition has the following text [my translation]:

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It is therefore possible to conceive of an outer legislation that contains only natural laws; but then a natural law would still have to precede it, which would establish the authority of the legislator (i.e. his authority to bind others by his mere choice). [331] Obviously, Kant is talking about positive legal systems here. The point he is trying to make rests on the observation that positive laws in the wider sense can either be natural laws or purely positive laws. Kant is inviting us to contemplate the possibility of a legal system that exclusively consists of norms of one of the two kinds. The textual problem is that it is not clear whether he is talking about the possibility of a systems containing only natural laws or about the possibility of a systems containing only purely positive laws. The Academy-Edition, followed by the Cambridge-Edition, has positive laws whereas Weischedel opts for natural laws. Bernd Ludwigs recent edition opts for positive laws. It would seem that the idea of a system of external laws containing only natural laws makes more sense on Kants view than the idea of a system containing only arbitrary positive laws that proceed from the power of choice of an agency located in time. Even if he does not talk about this case in the cited passage, he might still allow for its possibility. In some passages, Kant clearly intimates that this situation is his ideal.9 As I pointed out in the previous section, a system of external law containing only natural laws would be tantamount to the abolishment of the normative dependence of the reasonable person on someone elses power of choice. The idea of a system containing (some or even only) purely positive laws would, on the other hand, seem to be a corruption of this ideal. Kant, as we have seen, defends the idea that we have a general duty to obey positive law in the wide sense even if it fails to match an ideal system of legislation. It would appear obvious that a legal system can end the state of nature without achieving overlap with an ideal system of legislation. The transformation of juridical into ethical duty, therefore, cannot be limited to cases in which the juridical laws in question are natural in Kants sense. It must cover purely positive laws as well. Whenever there are external laws that are not natural, citizens are thus inevitably to a certain degree subject to an exercise of someone elses potentially abusive power of choice. If a legislator decides to enact a law that falls short of being fully reasonable, his subjects will nevertheless have an ethical duty to act in accordance with that law, i.e. they will be required to consider it as binding, even though the laws content does not as such merit to be so treated. But
9

See Metaphysics of Morals 45: A state (civitas) is a union of a multitude of human beings under laws of right. Insofar as these are a priori necessary as laws, that is, insofar as they follow of themselves from concepts of external right as such (are not statutory), its form is the form of a state as such, that is, of the state in idea, as it ought to be in accordance with pure principles of right. This idea serves as a norm (norma) for every actual union into a commonwealth (hence serves as a norm for its internal constitution). [457]

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when citizens are forced to treat as binding laws that do not, as such, merit to be so treated, we should suspect that the legal system infringes on their freedom in objectionable ways. How does Kant explain the bindingness of purely positive laws in the light of their deficiency? An answer to this question must take into account that purely positive laws are binding solely because they have been enacted by empirical legislators and thus been made parts of positive legal systems. They would not be binding if they had to stand on their own (which is precisely why they can be legitimate). The bindingness of natural laws, by contrast, is not dependent on membership in a positive legal system (which is precisely why they cannot be legitimate). It is a confusion, though an understandable one, to fail to distinguish the mode of bindingness of purely positive laws (legitimacy) from the mode of bindingness of natural laws (practical correctness). But the distinction is important: The fact that some legislator enacted some law is never a statement of a complete reason to accept that laws bindingness. It presupposes an explanation of why the legislator in question has authority to take decisions that are binding on others. I take this to be the point of Kants cryptic remark that even a system consisting only of (purely?) positive laws would have to be grounded on a natural law that authorizes the decisions of some empirical legislator (or, in modern terms, of the basic norm or rule of recognition of a positive legal system) to take binding decisions. The term natural law has to be understood in a specifically Kantian sense, of course: as a practical law that is valid a priori and whose binding force does not itself rest on historical exercises of legislative authority. Kant is visibly arguing against the view that positive laws are legitimate because monarchs have an entitlement to rule that can be traced back historically to a divine act of authorization. Such a rule of authorization would not count as a natural law in Kants sense even though its defenders may claim that it is above all human positive law. For Kant, the principle of divine right could only be a purely positive law that is completely arbitrary from the point of view of reason and would thus stand in need of further grounding. Similar considerations, needless to say, would doom any attempt to appeal to the empirical will of the people (as ascertained through some actual procedure) as a source of legal authority. To claim that we have an unconditional duty to obey any norm, even if mistaken, if it is the result of formally democratic procedure will only raise the question what natural law authorizes the people, so understood, to enact binding positive law. As far as I can see, the only plausible candidate for a natural law that can authorize the enactment of purely positive laws which is to be found in Kants work is the prescription to exit the state of nature that leads to a fundamental and unconditional duty to support any legal system regardless of its constitutional form. Procedure-independent standards of practical correctness of legislative decision

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cannot possibly fill the role of a natural law authorizing the creation of purely positive laws, since such standards, needless to say, will only support the bindingness of Kantian natural laws. Procedure-independent standards of correctness give validity to laws that conform to them in content, but they cannot explain the bindingness of purely positive laws that, by definition, do not conform to them. Our investigation into Kants theory of law has thus failed to unearth reasons of legitimacy that depend on democracy. Rather, it has strengthened the assumption that there is no conceptual space in Kants theory for procedural legitimacy based on democracy. For Kant, the bindingness of purely positive laws is indifferent to constitutional form while the bindingness of natural juridical laws is based on their practical correctness. It is therefore impossible, according to Kant, for us to end up in a situation where we ought to consider a law as binding, even if possibly mistaken, because it was produced democratically.

Kant and the General Will

This conclusion is sure to raise some eyebrows. It might appear to underrate the prominence in Kants political writings of the idea of popular sovereignty and of the idea of the general will of the people as a normative touchstone for sound legislation. In this section, I want to lay this worry to rest. To do so, I will argue that Kants understands the social contract primarily as a procedureindependent standard of the practical correctness of legislation. One passage that expresses the point very clearly is Kants description of the function of the social contract in On the common saying:

But it is by no means necessary that this contract (called contractus originarius or pactum sociale), as a coalition of every particular will within a people into a common and public will (for the sake of a merely rightful legislation), be presupposed as a fact []. It is instead only an idea of reason, which, however, has its undoubted practical reality, namely to bind every legislator to give his laws in such a way that they could have arisen from the united will of a whole people and to regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will. For this is the touchstone of any public laws conformity with right. In other words, if a public law is so constituted that a whole could not possibly have given its consent to it (as, e.g., that a certain class of subjects should have the hereditary privilege of ruling rank), it is unjust; but if it is only possible that a people could agree to it, it is a duty to consider the law just, even if the people is at present in such a situation that or frame of mind that, if consulted about it, it would probably refuse its consent. [296-297]

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Kant, in this passage, is very clear about the status of the principle of popular sovereignty: the answer to the question whether a law qualifies as an expression of the authentic will of the people does not depend on how that law was positivized. Kant explicitly emphasizes that legislative decisions which are taken by the use of democratic procedure may violate his test.10 The context of his argument, on the other hand, makes it clear that non-democratic legislative procedures may very well live up to the task of setting laws that fulfill the test. The point of Kants social contract is obviously to provide guidance to those who are empowered to take legislative decisions under some positive procedure. If Kants references to the will of the people had to be interpreted as making the claim that legislative decisions are binding insofar as they result from actual democratic procedure, the idea of popular sovereignty would clearly be unable to guide legislative decisions. Reasons for a legislative decision have to be available in advance of the actual decision if they are to guide it. If the idea of popular sovereignty is to guide legislators, it must therefore be possible for a legislator to figure out what legislative decisions conform to the will of the people without going through an actual democratic procedure. But if this is possible, actual democratic procedure clearly isnt necessary for the conformity of a law with the will of the people. Note that this interpretation of popular sovereignty does not just fail to lend any support to a theory of democratic legitimacy. It is also incompatible with the position I have called strong epistemicism. Strong epistemicists claim that the fact that a law was enacted democratically grounds a strong presumption that it is practically correct and they deny that we are in a position to form trustworthy beliefs concerning the substantive moral quality of laws without going through a process of democratic deliberation and decision. But the claim that a law is likely to be practically correct if it is created in a certain way, even if true, does not as such provide any guidance to legislators. It does not help them in any way to decide which of a number of legislative proposals is to be chosen for its superior moral quality. Hence, we can safely assume that Kants conception of popular sovereignty must not be interpreted along the lines suggested by strong epistemicists.

Kant on Republicanism and Despotism My argument so far is not meant to deny that Kant's republicanism is more than just a normative standard to guide the exercise of legislative powers. Kant wants to institutionalize the authentic will
10

For another explicit affirmation of this point see Toward perpetual peace 324.

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of the people and thus emancipate its effectiveness in the phenomenal realm from the contingencies of individual virtue. What I have argued is that the institutional side of Kant's republicanism should not be understood as part of a theory of legitimacy. Neither did I want to suggest that Kant himself would have supported constitutional indifferentism. Even if we reject democratic legitimism we can still attempt to justify the distinctive quality of a democratic constitution by the claim that democratic procedures exhibit what Rawls has called perfect procedural justice.11 In order to make this case, we would have to show that a republican or democratic constitution is preferable to other forms of government because it guarantees that only norms that match the transcendental standards of public justice will be enacted by empirical legislators (or, on a weaker version, that it maximizes the likelihood that laws will match those standards). In other words, the institutional republic is the solution of the problem of finding a constitution that will prevent violations of right even among a nation of devils. [335] Kant's republic, according to this reading, is not a solution to the problem of political legitimacy; it is the vanishing point of the problem of legitimacy. Republicanism is animated by the belief that a constitution can be designed so as to make sure that its laws will inevitably match an ideal system of legislation or tend to approximate such a match as far as possible. As a result, citizens freedom from subjection to purely positive laws that unduly restrict their freedom will no longer be contingent upon whether those entrusted with legislative powers are virtuous enough to execute them responsibly. In this section, I want to argue that we should understand Kant's republicanism along these lines. The fundamental contrast Kant relies on in explaining his idea of republicanism is that between republicanism and despotism as forms of government (Regierungsformen); a term Kant carefully distinguishes from forms of state (Staatsformen). The traditional tripartite division of constitutions into monarchy, aristocracy, and democracy is a distinction of Staatsformen, according to Kantian terminology. Kant emphasizes that all three of these forms of state can be either republican or despotic with regard to their form of government.12 The most general property of a despotic order is the fact that it makes citizens dependent on a legislative authority that may present them with purely positive laws which fail to match the content of an ideal system of legislation. In a true or pure republic, by contrast, citizens are governed by laws that proceed from the concurring and united will of all, insofar as each decides the same thing for all and all for each. [457] This is said to ensure that no citizen can be wronged by the laws since a citizen can never do wrong in what he decides upon with regard to himself. [ibid.] A citizen will
11 12

See John Rawls, A Theory of Justice (Cambridge/Mass. 21999) 74. See for example Toward perpetual peace 324-325 and Metaphysics of Morals 480.

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therefore never be in a position to have to obey a purely positive law in the Kantian sense, a law that does not in itself merit to be considered as binding. The law of his individual practical autonomy and the laws of the body politic will coincide completely. The pure republic is a system that perfectly lives up to the normative standards of freedom and equality set by the idea of the original contract. However, Kant operates with two different senses of republicanism throughout his political works. To understand his way of rejecting the indifference thesis we have to understand how the two senses of the despotism/republicanism-divide that we find in his writings relate to each other. The republic is first and foremost a normative ideal. It describes the form of a state as such, that is, of the state in idea, as it ought to be in accordance with pure principles of right. The ideal of republicanism expresses the implicit purpose of every kind of political rule: the full realization of a Rechtszustand. It thus provides those who have legislative powers under some positive constitution with a normative guideline for creating good external law. They are under a duty to enact laws that could have proceeded from the authentic will of the people. In this sense of the term, republicanism requires nothing more than that the legislators, whoever they may be, enact just laws and govern in accordance with those laws. However, Kant clearly thinks that republicanism is not just a normative but also an institutional ideal. The term form of government is therefore ambiguous in Kantian usage. Sometimes it refers to the way in which power is exercised by those who have political authority. In Toward Perpetual Peace Frederick II. of Prussia is referred to as a ruler whose self-understanding as the first servant of the state is in line with republicanism as an ideal, presumably because the laws he made as a servant of his state were such that they could have arisen from the authentic will of the people. In section 52 of the Metaphysics of Morals Kant distinguishes between the letter of and the spirit behind a form of government. A government can be republican in spirit, like that of Frederick II only, or also dem Buchstaben nach, i.e. in its institutional form. Institutional republicanism is here identified with a representative system of the people [my translation], or, in modern terms, a representative democracy. Kant characterizes this system by saying that it exhibits a division of powers in accordance with the transcendental principles of right. He clearly commits to the view that this system is preferable to a system that is republican only in spirit and he identifies the institution of such a system as the final end of all public right that alone conclusively establishes a rightful condition and perfectly realizes the idea of collective selfgovernment through the united will of the people. [480-81] In a representative system of the people the external laws are not just such that they could have arisen from the authentic will of the people, they do in fact arise from the authentic will of the people. Kant consequently affirms, in a rather

20

obscure passage, that a true republic overcomes the implicit character of the relationship of representation between the empirical sovereign and the united will of the people as a transcendental source of right:

Any true republic is and can only be a representative system of the people, in order to protect its rights in its name, by all the citizens united and acting through their delegates (deputies). But as soon as a head of state can be represented in person (whether it be a king, a nobility, or the whole people, the democratic union), so the united people does not just represent the sovereign: it is the sovereign itself. For in it (the people) is originally found the supreme authority from which all rights of individuals as mere subjects (and in any event as officials of the state) must be derived; and a republic, once established, no longer has to let the reins of government out of its hands and give them over again to those who previously held them and could again nullify all new constitutions by their absolute choice. [481, modified translation] This passage has to be interpreted in the light of the opening sentences of 51 of the Metaphysics of Morals in order to be understood properly. Kant, in the Metaphysics of Morals works with two different notions of sovereignty. On the one hand, he acknowledges the existence and unlimited authority of an empirical, Hobbesian sovereign. On the other hand, he is committed to the view that the rational as opposed to historical origin of all external law has to be identified with the authentic will of the people to whom the power of legislation belongs by right. As we have seen, this leads to the normative requirement on any empirical rule to strive to be republican in spirit. Those who have the power to take political decisions ought to think of themselves as representatives of the authentic will of the people, i.e. of the transcendental principles of public justice. Sometimes, for example in Metaphysics of Morals 52, Kant uses the term sovereign to refer to this transcendental will:

The three authorities in a state, which arise from the concept of a commonwealth as such (res publica latius dicta), are only three relations of the united will of the people, which is derived a priori from reason. They are a pure idea of a head of state, which has objective practical reality. But this head of state (the sovereign) is only a thought-entity (representing the entire people) as long as there is no physical person to represent the supreme authority in the state and to make this idea effective on the peoples will. Now, the relation of the former to the latter can be thought of in three different ways: either that one in the state has command over all; or that several, equal among themselves, are united in command over all the others; or that all together have command over each and so over themselves as well. In other words, the form of a state is either autocratic, aristocratic or democratic. [479, translation modified] What we get here is the following picture: the transcendental will of the people is the true principle of all political authority. However, it remains a mere idea as long as it is not represented in the phenomenal realm by an empirical sovereign who can either be monarchic, aristocratic or

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democratic. The term person that Kant uses here for the empirical sovereign must not be misunderstood as referring to a psychological individual. It is clearly meant to denote the legal personality that we can ascribe to associations as soon as they are united by a positive procedure of taking decisions that are regarded as binding on its members. The factual existence of some procedure of this kind (what modern legal positivists call a rule of recognition) is constitutive of the existence of a political community in the phenomenal realm. It does not matter here whether the basic procedural rule that constitutes a political community says that political decisions are to be taken by one individual, a group of individuals or by the whole citizenry. Even a monarch is only entitled to rule as the bearer of the legal personality of the community. At first glance, this analysis seems to support the indifferentist thesis that all forms of constitution are in the same boat. They all, even monarchy, implicitly represent the political community that ought to be but none, not even democracy (which is here presumably to be understood as a democracy that is not republican or representative), attains a perfect fusion of the empirical sovereign with the normative standards that constitute the ideal community the empirical sovereign represents. However, Kant supports indifferentism only insofar as we are talking about forms of state (including democracies) that are not republican. A system with a republican form of government will, according to Kant, lead to an identification of the transcendental with the empirical sovereign. The republican empirical sovereign does not just represent the transcendental sovereign; he is, in some sense, identical with it. If I am right to claim that democratic legitimism is incompatible with the Kantian framework, we are under severe restrictions with regard to possible ways of explaining this identification. Kants claim that the united people under a republican constitution does not just represent, but that it is the sovereign, cannot refer to the legitimist view that all norms that are produced by an certain actual procedures are to be taken as authentic or direct expressions of popular sovereignty regardless of the practical quality of their content. In other words, Kant cannot be arguing here that a bad law is expressive of the will of the people if it is produced by an institutionally republican constitution but not if it is enacted by a monarch. Kant is committed to the view, rather, that the empirical republican sovereign will always decide in accordance with the procedure-independent standards that constitute the normative ideal of republicanism. If it didnt, it would, like other constitutional frameworks, merely represent the ideal will of the people but not be identical with it. The only remaining option for explaining the republican identification of the transcendental with the empirical sovereign I can think of is to claim that an institutionally republican system will reliably produce laws that match procedure-independent standards of practical correctness and are therefore

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in themselves worthy of respect. What Kant is saying, then, is not that the external laws of a true republic are legitimate regardless of their content because they are made by the popular sovereign himself. Such a view would be nothing but a secularized variant of the divine right of kings. What he must be saying, rather, is that the external laws of a genuine republic cannot fail to conform to the rational origin of law. A republic, so understood, differs from other constitutional forms in that it gives us assurance against subjection to unreasonable legal restriction. A benevolent and wise monarch might represent the ideal will of the people so well that all his laws are such that they could have arisen from the united will of the people. But this representative success is dependent on the vagaries of individual virtue in the ruler. Institutional republicanism eliminates this dependence, which explains why it can be credited with bringing about an identity between the real and the ideal legislative will. I have to admit that Kant never describes republicanism as explicitly in these terms as one might expect.13 Without going into too much detail, I nevertheless want to present some observations that will at least lend some plausibility to the attribution of this view to Kant. The main support for the interpretation proposed here derives from its ability to explain why Kant believes that the separation of powers should be regarded as the defining feature of an institutional republic. I have already argued that Kant is committed to a rejection of strong epistemicism. It is therefore highly unlikely that a republican constitution would be needed for cognitive reasons, in order to find out what is true or correct according to the standards of legal excellence. Kant never implies that it is cognitively difficult to answer such questions.14 The problem that the procedures of the institutional republic are supposed to solve can therefore only be a motivational problem. The constitutional order of the true Kantian republic, in other words, must have the function to make sure that the power to take legislative decisions is distributed in such as way as to make sure that the legislator does not have the opportunity to harm the subjects of the laws by preferring his partial interest over the common good. In other words, Kant still seems to be committed to the classical view that the main cause of despotism is to be seen in the self-interested rapaciousness of those who wield political power. Rulers will be inclined to abuse their power to further their individual interests, instead of acting on reasons that all citizens can share, unless their tendency to be swayed by a partiality to their own interest is held in check by a suitably designed institutional framework.
13 14

Though he comes very close at time. See Perpetual Peace, 335-6. In fact, Kant suggests that the task of assessing the conformity of a law with the principle of right is cognitively trivial. See On the Common Saying, 298: Now the legislator can indeed err in his appraisal of whether those measures are adopted prudently, but not when he asks himself whether the law also harmonizes with the principle of right; for there he has that idea of the original contract at hand as an infallible standard, and indeed has it a priori [].

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Before we come to the core feature of that framework, we should take not that the framework presupposes a certain political sociology. Kants conception of citizenship is obviously inspired by the idea that all those who are active citizens more or less share a way of life: that of the economically independent head of a household. His philosophy of history implies that all members of society who are potential citizens will come to share this form of life once feudal privilege and religious superstition lose their social influence. The possibility that citizens might be split into antagonistic camps that cling to incommensurable ideologies or conceptions of the good life whose competing claims are not easily reconcilable by philosophical critique does not seem to figure prominently in Kant. The only interesting causes for despotic politics (apart from false beliefs which enlightenment will unmask and thereby make powerless), i.e. politics that prefer the interests of a part to those of the whole, are ethical: they result from the tyrannical ambitions of the powerful few who are in a position to instrumentalize the political order for their partial interest. In this vein, Kant often classifies the ancien rgime as despotism because it rested on the denial of the citizens equality in the face of the law. His favorite examples of unjust laws are privileges that confer special rights or an elevated legal status upon some citizens while withholding the same from others or laws that exempt some citizens from duties that others have to meet. Kants political sociology implies that citizens have shared interests that are relatively easy to grasp for everyone. On this assumption, it is very unlikely that legislative decisions that are taken democratically by free and equal citizens will in fact diverge from their common interest and support privileges of a chosen few. Partial interest, under the premise of homogeneity of the citizenry, always means something like personal interest in unfair gain at the loss of others and such interests are unlikely to be voted for in a democratic system (given that the citizens are generally enlightened enough to perceive partial interests as such). In the society Kant envisages, every politician who wanted to get a law passed would have to convince a majority of the citizens that the law is in their own interest. And this, according to the idealizing assumptions I have attributed to Kant, is possible only by proposing a law that does in fact express an interest that is widely shared among citizens. An interest that is shared widely enough to find a majority, finally, is likely to be a common interest of all. Hence, there would be no room for a distinction that is all too well known to us: namely that between a politicians pretending to speak for the common good and his actually doing so. It is easy to see that the soundness of this line of thought presupposes the satisfaction of one further crucial qualification. And this further qualification, the ideal of a separation of powers, constitutes the core of Kants republicanism. Hence, the attribution of the assurance view to Kant explains why

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Kant thinks that the separation of powers, as he conceives of it, should be regarded as the key feature of institutional republicanism. Kant explicitly emphasizes that the separation of powers between legislative, executive, and judicative is the main institutional backbone of republicanism. In fact, he sometimes more or less identifies despotism with the absence of a separation of powers and republicanism with its presence:

Republicanism is the political principle of the separation of the executive power (the government) from the legislative power; despotism is that of high-handed management of the state by laws the regent has himself given, inasmuch as he handles the public will as his private will. [324] Kants separation of powers is not to be confused with conceptions like those of Locke or Montesquieu. Kant is not advocating a system of checks and balances or of limited government. These ways of separating powers divide up one power of government, for example the legislative power, and let several different constitutional organs, for example a king and a parliament, have an independent share in it, such that the several organs involved must reach free agreement on legislative policy in order for laws to come into effect. Kant seems to have agreed with Hobbess view that such a separation of powers is a recipe for disaster. Kants separation of powers, by contrast, is a functional separation of powers. Kant argues that each of the functionally defined three powers of government (legislative, executive, judicative) ought to be in the hands of one single organ, but that it is crucial to prevent any one organ from participating in any way in the exercise of more than one power. The legislative is not to engage in executive acts while the executive is to have no legislative powers of its own but rather to be bound to the mere execution of law set by the legislative. Courts are to be independent of the executive and to be run by the citizens themselves. But they are to decide on the basis of the laws enacted by the legislative. Kant would clearly reject the idea that they ought to have a power of judicial review of legislative decisions. The major aim of this conception of the separation of powers is to make every singular exercise of state power dependent on general law. According to Kant, the division of powers is supposed to work in the following way: The powers of the executive and the courts are to be limited by the fact that they can only take action on the basis of general laws set by the legislative. Neither have a power to take political decisions, i.e. decisions that cannot be based on already existing general law. The legislative, on the other hand, has no executive powers to take decisions in particular cases and it is barred from enacting laws that fail to be general. It is only on this condition that the legislators lack will lack the opportunity to harm particular citizens or benefit others unjustly. The republic, as a

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result, is governed by the rule of general law, and this will assure citizens against the danger of abusive and partial exercises of political power. This conception of the rule of law is clearly needed to make sense of Kants claim that the republican legislator cannot harm its subjects. Even under conditions of shared interest, a democratic constitution will reliably prevent despotic governance that serves partial interests only if the laws enacted by the people are general, if the people are prevented from interfering in particular cases, and if the executive and judiciary machinery of the state is in turn controlled by the general laws enacted by the people. Kants claim that the separation of powers is the definitive feature of republicanism thus makes a lot of sense once republicanism is understood as based on the assurance view. A legitimist or epistemic interpretation of institutional republicanism, by contrast, would have a much harder time explaining why republicanism should be identified with a functional separation of powers and the rule of general law. If the will of the people had the power to legitimize results, this power would presumably apply to particular as well as general decisions. Likewise, if democracy were to be justified epistemically, there would seem to be no obvious reason to deny that the wisdom of the crowd will show itself in particular and general decisions. I conclude that Kants institutional republicanism is an assurance view. Kants development of that view is a coherent response to constitutional indifferentism, and it is one that is not based on a legitimist approach. What we have to ask now is whether Kants assurance view is convincing enough to be relevant for contemporary democratic theory.

Conclusion: Is the assurance view plausible?

I am not convinced that Kants argument for institutional republicanism can explain why we have reason to prefer that constitutional framework to other constitutions. The assurance view, while a coherent response to constitutional indifferentism, strikes me as indefensible under modern conditions. I will not develop a detailed argument for this claim in the space of this paper. Rather, I will briefly sketch a number of considerations that seem to me to create serious trouble for any attempt to apply Kants assurance view in contemporary constitutional theory. As I have argued above, Kants republicanism seems to be designed as a response the classical problem of despotism, i.e. to political rule that prefers partial interests over the common good. The idea is that constitutional frameworks can be so designed as to make sure that legislators lack any opportunity to prefer their partial interest over the shared interest of the people and that such design

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will result in legislative outcomes that reliably and recognizably match procedure-independent standards of practical correctness. A citizen therefore has assurance that he will never be called upon to defer to actual legislative decisions that he may reasonably suspect of being practically incorrect. But what if the content of the common good is subject to reasonable disagreement, even among citizens who deliberate in good faith and who are willing to prefer the common good to their partial interest? Modern pluralistic societies are characterized precisely by such disagreements, and this would seem to entail that institutional republicanism will lack the power, in modern societies, reliably to produce outcomes that must be recognized as practically correct by all reasonable citizens. Hence, even an institutional republic would, after all, have to rely on reasons of legitimacy in order to give all citizens reason to consider all its laws as binding and the aims of republicanism would thus remain unfulfilled. Another serious problem for the insurance view stems from Kants conception of the separation of powers. Kants conception of the separation of powers seems to assume that general laws are indeed capable of guiding judicial and executive decisions in such a way as to make all exercises of discretion or normative judgment in the application of the law on the part of the executive and the courts unnecessary. In other words, Kants conception of the separation of powers seems to be committed to a formalist jurisprudence based on a notion of legal determinacy that is widely rejected by contemporary jurisprudence. If the application of law inevitably required creative interpretation or even quasi-legislative judgment on the part of administrators or judges at least in some cases, the separation of powers, as Kant conceives of it, would obviously break down. Individual judges or administrators would sometimes have to take normative judgments that, in Kants view, must be controlled by the principle of democracy at the legislative level if we are to have assurance against despotic exercises of power. Of course, there is no reason to think that administrators or judges endowed with powers of discretion must fail to decide in a way that tracks the common good. But whether they do so or not will once again depend on the contingencies of individual virtue. Finally, the conception of the generality of positive law that we find in Kant is in need of a lot more explication than Kant himself seems to give it. At least on some readings of legal generality, for instance on Hayeks reading, the rise of the administrative state clearly conflicts with the Kantian ideal of the separation of powers. The administrative state necessarily relies on laws that empower administrative agencies to take decisions which can only be described as partly discretionary. What is more, the administrative state will often be unable to pursue its policies without enacting laws that, from a formal perspective, extend privileges or engage in certain forms of discrimination. At first glance, the rise of the administrative state would thus seem to undercut the aim of freeing citizens

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from the danger of despotism. But few would be willing to argue that we should therefore abandon the administrative state and its goals. At the very least, these problems seem to cast doubt on the plausibility of Kants assurance view. A system that is in all institutional respects perfectly republican is likely to fail to provide the assurance of identity between the actual and the ideal legislative will that Kant desires. It thus looks as though Kant fails to defeat constitutional indifferentism. As we have seen, Kant believes that legitimacy of legislative outcomes doesnt require democracy. His reasons for rejecting indifferentism are based on the claim that institutional republicanism can realize a higher ideal of legislative excellence than mere legitimacy. But if the assurance view is implausible, this reason for rejecting constitutional indifferentism fails, and it is unclear whether the Kantian has any other reasons. It might be objected to this view that I am interpreting the assurance view in too demanding a way. Even if Kant himself may have believed in the possibility of complete identity between the actual and the ideal will, the claim that Kantian institutional republicanism will at least be better than any other constitution in preventing despotic laws might be enough to defeat constitutional indifferentism from within a Kantian approach to constitutional theory. If this weak assurance view is true, we clearly do have a reason to prefer republicanism over other constitutions, quite regardless of whether republicanism figures in a theory of legitimacy. And the claim that a system with a separation of powers will be better at avoiding despotic exercises of political power than one without a separation of powers seems to be an undeniable truism. I grant that that it is plausible to assume that our own conviction of the superiority of democracy is at least in part based on a weak assurance view of this kind. But I am not sure whether a defender of a Kantian approach to constitutional theory can derive much comfort from this admission. If my criticisms are sound, it is unclear whether Kants conception of the separation of powers is even workable and it is equally doubtful whether it is normatively desirable. If modern liberal democracy as it actually exists has a despotism-inhibiting effect, that effect is unlikely to result from its being characterized by being republican or by sporting a separation of powers in the Kantian sense. As a result, the fact that there may be some truth in a weak assurance view of some sort does not entail that Kants constitutional theory has the resources to justify our conviction in the superiority of democracy over other constitutional forms. A justification of democracy through assurance requires that we understand the mechanism by which it produces assurance, but Kants views about the mechanism are flawed. I conclude that the Kantian framework does not provide us with a promising approach to contemporary constitutional. In order to get to grips with understanding the value of democracy, we should start elsewhere.

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