Transcendental Politics?

Political Legitimacy and the Concept of Civil Society in Kant

Author(s): MANFRED RIEDEL
Source: Social Research, Vol. 48, No. 3 (AUTUMN 1981), pp. 588-613
Published by: The New School
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TranscendentalPolitics? /
PoliticalLegitimacy /
and the Concept /
of CivilSociety /
in Kant / BY MANFRED RIEDEL
z

A he conceptof civilsocietydemandspreliminary explication

because it has acquired a meaningwhichappears hardlyap-
propriateto the problemof politicallegitimacy.Indeed, it
seems to repudiateit altogether.Accordingto contemporary
understanding, the meaningof civil societyis relativeto a
particularhistoricalperiod.Originating withtheemancipation
of Europe's urban middle classes during the sixteenthand
seventeenth centuries,it designatessinceHegel and Marx the
historicallyestablisheddominationof the "bourgeoisie"over
the "proletarian"class foundedon the relationshipof capital
and labor.
The term"civilsociety,"however,was not firstformedwith
the emancipationof the modernmiddleclass. It has a prior
history whichpointsfarbeyondthehorizonof our contempo-
rary understanding. We find it in medieval political
philosophyas wellas in modernnaturallaw.The worditselfis
of Greekoriginand firstappears as politike koinoniain Aristo-
the
tle'spoliticalGreekcity-state, polis. In the firstbook of the
PoliticsAristotlesays that the societywhichdominatesand
containsall othersocietiesis the so-calledpolisor "civilsoci-
ety."1In this identity,the concept entersthe discourseof
1Politicsi 1, 1252 a 6-7.

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 CIVIL SOCIETY IN KANT 589

European political philosophy: civitassive societasavilis sive res

publica.This formulais, along with several variations,the
conceptualthemeof politicalphilosophywhichextendsfrom
Cicero to Thomas Aquinas and up to Locke and Kant. The
Latin societascivilisis not civil societyin the present-day
meaning,thatis, a spheredistinctfromthe state;rather,it is
identicalwithit, so that the problemof politicallegitimacy
throughoutthesecenturieswas equivalentto the problemof
legitimizing civilsociety.The relationsbetweenhuman indi-
vidualsare not restricted to indigenoussocial formsor those
dependentsolelyon man's naturalinclination.Instead,these
lead to a societybased on a formof dominationwhichin the
traditionallanguage of politicalphilosophyhas been called
"civilsociety"ever since Aristotle.Is therea justification for
the indisputablefactof such a societyand the dominationof
men over men connectedwithit, and if so, whatis it?
In regardto thisquestion,thetradition in whichtheconcept
of civilsocietystandsproposedvariousanswersand developed
differenttheoreticalparadigmsand patternsof argumenta-
tion.All of theseterminate moreor less in theequallyfamous
or infamoustheory of contract:legitimatedominationis not
based on therealityof subjugationor functioning institutions,
butratheron conditionsof civilsociety - thepossibility
of men
to communicate reasonably,justly,and freely.Domination and
communicationare the two key conceptsof the theoryof
contract.Respectiveto theircorrelation, or delim-
distinction,
itation,the theoreticalthemesand theirfunctionof legitima-
tion change. New difficulties, of course, presentthemselves
here. Does not the theoryof contractbelong,ever since the
criticism of historicism,positivism,and historicalmaterialism,
to those relicsof prescientific thinkingwhichare preserved
solely in the archivesof the historyof philosophywheresuch
erroneousideas are generallykept?Doubtsariseas wellwhen
we, as has becomecertainlyunavoidablein the linguistic con-
fusionof our time,questionthe linguisticpresuppositions of
the doctrinesand theoremsof the tradition.In fact,whenwe

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590 SOCIAL RESEARCH

criticallyread the classicalworksof politicalphilosophy,for

example, those of Hobbes or even those of Rousseau and
Kant,we findourselvesat thesame timebothattractedto and
confusedbythelanguagein whichtheywerewritten. We find,
for example,the discussionof a politicalbody withoutany
explanationof how the spatial dimensionsof such a body
could be established.There is also the referenceto a civil
person,withwhomwe certainlycan nevertake up relations.
Furthermore, thereis a generalwill,whichis notcomposedof
the willsof the individualsbut ratheris supposed to be sui
generis.Finally,thereis theuse of a wordtakenfromcolloquial
speech which definitelyseems very unusual. We find ref-
erence to a contract which, as the authors of political
philosophyassureus, has nevertakenplace.2The difficulties
and doubtscan, however,be eliminatedto a certaindegree if
we rememberthatthisterminology is takenfromthe context
of propositionswhichdeal withpoliticsand naturallaw as
theoreticalcomponentsof practicalphilosophy or, more pre-
cisely,that of
part practicalphilosophy whichhas to do with
the doctrineof principlesfor politicalactionas it was devel-
oped and cultivatedparticularly in the moderntheoryof nat-
ural law. What we are dealing withhere are not empirical
conceptsbut normativeones. The principlesderived from
themare not statements of factbut statements of law witha
claimto normativevalidity.In otherwords,theyare practical
principlesintendedto formulaterules and imperativesfor
politicalaction- the action of individualsand the action of
- and to found and justifythe "conditionsof the
institutions
possibility"of domination.
The legitimacy questionfirsttakeson the strictformof the
theoryof contractin seventeenth-century naturallaw. It is
here- and it is onlyhere- thatthequestionis firstraisedas a
questionof law and thattheproblemof legitimate domination

2 See
Margaret Macdonald, "The Language of PoliticalTheory," in AnthonyFlew,
ed., Logic and Language (Oxford: Blackwell, 1963), p. 167.

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 CIVIL SOCIETY IN KANT 591

is solved withthe conceptualmeans of the contract.In the

following discussionof thistheory,I would liketo showthree
things:first,howit was at all possibleto arriveat thisquestion;
second, why the relationship between normative and
empirical-factualconceptsand principlesremainedproblem-
aticin spiteof theundeniableprogressmade in modernpoliti-
cal philosophy,in particularby Kant; and third,whetherthe
theoryof contractis, in viewof thisaporia and the criticism
made of it in the nineteenthcentury,systematically and his-
toricallyobsolete,or whetherit can be critically reconstructed
and justified.

and theBeginningoftheTheoryof
The ClassicalParadigm:Aristotle
Domination
Legitimate

If one looks back to the beginningsof European political

philosophy,Aristotleappears to be the firstauthorto have
seen and givenpositiveexpressionto the significance of the
relationshipbetweendominationand communication. At the
beginningof thefirstbook of the he
Politics discusses
critically
theopinionof his predecessors(Xenophon,Plato)that"domi-
nation"is the same everywhere:in the household as in a
monarchy,in a polityas in despotism,in Greece as in Asia.
This opinionis rejectedby Aristotleas "notbeingsaid in the
rightway"and as "untrue."3The untruthliesin thethesisthat
civildomination,dominationbya king,domesticand despotic
dominationare different onlyin thelargeror smallernumber
of subjectsand notin theirconceptor theirbasicnature.4This
eidos,theconceptualdifferentiation
of dominationintovarious
"kinds" and their correspondinglinguisticdesignation,is
- and thisis significant
placed by Aristotle foreverything else
-
that follows not in an abstractconceptof "agreement"in-

3 Politicsi 1, 1252 a 9-16.

4 Politicsi 1, 1252 a 10.

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592 SOCIAL RESEARCH

tendedto limitdominationin accordancewithhuman rights

and freedom,but ratherin the respectiveformof communi-
cationconnectedwiththedifferent formsof domination.Con-
sequently, the Aristotelian approachturnstowardthe histori-
callygiveninstitution of thepolisand the formsof domination
and communication existingin it.Whatcivildominationis and
what distinguishesit from all these other forms can be
methodically determinedonly by startingwiththe polis and
what it is accordingto its concept and its "essence."5The
Aristotelian answeris: thepolisis politike koinonia, civilsociety
as a communication betweencitizenswho are joined together
asfreemen and equals.6This does not mean thatthisinstitution
is based on freedomand equalityas principlesof political
philosophy. What is does mean, however, is that this
society- in contrastto all the othersocietiesknownto exist
historically at thattime- has as itsprincipleman as a freeman
and as its subjectthe citizenas an equal.
It is in thiscontextthatAristotle's politicallynormativeprin-
ciple, that man is by nature a zoonpolitikon,gainsitshistorical
and fundamentalphilosophicalsignificance. Not onlydoes it
mean thatman "actually"leads his life in thepolis,but con-
verselythatwiththepolisas politike koinoniaa formof society
has constituted itselfhistoricallyin whichthe"nature"of man
has becomethe basis of institutional dominationof men over
man. However,at thesame time,hereliesthelimitation of the
classicalparadigm.By presupposingthese institutions as al-
ready existinghistorically, Aristotle never even raises the
questionof how theywouldhave to be legitimated in orderto
satisfy the demands of reasonable,just, and free communica-
tion.The relationship of thenatureof man to thecity-state as
civilsocietyremainsobscure,and it does so preciselybecauseof
the doctrinepeculiar to the Politicswherebythere are two
formsof dominationand communication whichexist"by na-
ture":the relationshipbetweenthe masterand the slave and
5Politicsm 1, 1274 b 33-34.
Politicsm 6, 1279 a 27; vu 8, 1328 a 35-37.

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 CIVIL SOCIETY IN KANT 593

the relationship of the citizensamongthemselves, thatis, civil

societyitself.
This obscurityis the reason for Aristotle'sinabilityto
legitimizethe exerciseof dominationin thepolison the basis
of the concept of the polis itselfas politike koinonia.It also
explainswhyin this matterhe is able to draw only on the
contrastwiththeruleof themasteras a criterion ofjudgment.
Despoticdomination, belongingto thesphereof merelifeand
the worknecessaryformaintaining it,is based on compulsion
and not on a law or the consentof the ruled; it amountsto
unlimited,unrestrictedrule over those who are by nature
unfree.Civildominationis in all of theserespectsexactlythe
opposite:it is rule,restrictedthroughlaw,overthosewho are
bynaturefreemen;itis rulein viewof thecommoninterestof
rulersand subjects,and it is properto the sphereof thegood
life,thatis,thevirtuousand happylife,whichis distinguished
fromtheproductionof thenecessities of lifebythenormative
characterof the "good action"peculiarto it.7
A theoryof agreementor contractwould be foreignto
Aristotle.Even moreso, itwouldbe unthinkable forhimgiven
the problematicalstructureof his politicalphilosophy.This
aporia, whichbecomes apparent in the transitionfromthe
Nicomachean Ethicsto the Politics,can be formulatedaccord-
ingly:If legitimatedomination restson theend of thegood life,that
is, thevirtuousand happylife,thenthereis absolutely
no needfor the
applicationofforce in regardto thosewho live in accordwiththis
end- thefreemen;if on theotherhand, thosewhoare not in agree-
mentwiththisend- themany - are forcedto live thegood life,this
coercionis no longercapable of lawful legitimation. The polis is
necessarilya formof dominationof men over men, but in
regardto howthisformaldominationshouldbe constituted or
lawfullylegitimatedabsolutelynothingcan be determined
fromtheAristotelianpremises.There remainsa gap in politi-

7Politicsi 5, 1254 b 2-14; i 7, 1255 b 16-37; in 4, 1277 a 33-b 77; vii 14, 1355 a
5_7,b 27-28.

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594 SOCIAL RESEARCH

cal philosophywhich Aristotlecloses in two ways: first,

throughthe natural theoryof the polis as politikekoinonia,
accordingto whichdominationand communication form,so
to speak,an indigenousunity;and second,throughthe his-
toricaland empiricalinterestin the existingconstitutions
which Aristotle,having given up all interestin a theory
foundingor justifying - a
them,deals withas materialpolitics
kind of naturalhistoryof the formsof domination.

or Contract?
TheoryofAgreement

This gap in politicaltheorydeterminedthe natureof the

manyanswersgivento the problemof legitimatedomination
and civil societyin medieval and early modern political
philosophy,periodsin whichAristotelian philosophywas still
veryinfluential.
I am goingto restrictmyselfto considerationofjust a few
positionsand to a few commentson the way in whichthe
problemwas raised.
1. The Aristoteliantradition(from Thomas Aquinas to
Suarez) presupposesthe existenceof civil societyand thus
alreadyan authority rulingbyvirtueof thelaw of nature,even
beforethe question of agreemntas to this authorityor its
legitimation is raised.8
2. The agreementitselfrefersprimarily, as it does in Aris-
totle,not to thissocietyand itsrulingauthority,but ratherto
the laws: nomosand lex,not archeand potestas(that is, Imperium)
are interpretedfirstas objectsof agreement(homologa,pac-
tum,consensus)
among the citizens,wherebypactum can also
be consideredas being synonymous withconcordia,
vinculum,
untoand so forth.0
coetus,
8 Cf. Thomas
Aquinas,De reg.princip.1, i, c. i; S. th.i/ii,qu. xxi, art. 4 ad. 3; Suarez,
Tract,de legibusm, c. h 4.6.
0 Cf. the ancient evidence in Alfred
Voigt, ed., Der Herrschaftsvertrag (Neuwied:
Luchterhand, 1965), pp. 37-52, which can be associated neitherwiththe scheme for,
the contractof rule nor withthe one for the contractof society.Representativesof the

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 CIVIL SOCIETY IN KANT 595

3. If the conceptof contractor agreementrefersto society

and the rulingauthority derivedfromit- I have been unable
to determinewhenthisfirsthappened- thenit alwaysrefers
to civilsocietyas a wholeand notto theindividualsas itsparts.
We can formulatethisaccordingly:forthe classicaltheoryof
civil societythere is indeed a contractof society(pactum
but thereis no contractof agreementbetweenindi-
societatis),
viduals (pactum singulorum).
4. The author who firstbroke with these premisesand
uncoveredthegap in Aristotelian politicaltheoryand itsmod-
ern traditionwas Thomas Hobbes. Accordingto Hobbes,civil
societydoes not exist by nature, but rather it originates
throughthe union (unio) of a "numberof men" in a "civil
person."This union is accomplishedthroughthe contractof
each individualwithall otherindividuals,thatis, the contract
of thesinguliamong themselves.It is onlywiththisstep that
the generalproblemof the philosophyof law and the stateis
raised,namely,the extensionof the theoryof contractfrom
thepartnersin civilsociety,thecitizensas freemenand equals,
to the freedomand equalityof men as men.
The solutionwhich Hobbes suggeststo this problem is
paradoxical:Agreement(uniocivilis)and the rulingauthority
do not followfromone anotherbut ratherstandnextto each
otherin the contractualconstruction of civilsociety.It is no
longer a precept of nature but of reason (dictamen rectae
rationis)to abandon the stateof natureand to seek the condi-
tions of communicativeaction in a still unfounded civil
society- throughthe agreementof everyindividualwithall
theotherindividualsto therestriction, validforall and there-
forelawful,of theirnaturalrightto everything. The stateof
nature,however,can no more be overcomethroughagree-

analyticalschool of thought in political philosophy correctlyspeak of a "contractof

citizenship,"which is to be distinguishedfrom the modern scheme of contract("con-
tract of government"and "contractof community").Cf. D. D. Raphael, Problemsof
PoliticalPhilosophy(New York: Praeger Publishers, 1970), pp. 86-93.

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596 SOCIAL RESEARCH
lawsof
mentalone thanthroughinsightintothe prescriptive
shouldbe kept'pacta servando,
nature (for example, thatcontracts
sunt]),whichHobbes derivesas the rules of communicative
actionfromthe basic postulateof reason: to seek agreement
and avoid conflict.Therefore,the object of the contract -
possibility of communication - is at thesame timetherealityof
domination, thatis,thatpeculiarconstruction ofthe"stateper-
son" who actuallyexecutesthe normsof reason and has, for
example,the task of keepingthe individualsin fear and di-
rectingtheiractionstowardthe generalwell-being.10 The re-
sult is the transferof the naturalrightto everything to the
rulerand thus,viewedconstitutionally, the establishment of
absolutism-an enlightenedform of absolutism,of course,
which,whileit concedesone naturalrightof freedomto the
singuli(thatof self-preservation), stillfallsunder the Aristote-
lian distinction betweenciviland despoticdomination.
5. This is exactlytheviewof Rousseau,who placed Hobbes
and Aristotleon the same level and held the opinion that
politicalphilosophyhad not moved one step forwardsince
Aristotle.11 The sole and irrevocabletransfer of dominationto
thesovereignis thebreakdownof all possiblecommunication;
it is the renunciation of naturalhumanrightsand freedomto
an authoritywhichcan no more be legitimatedon thisbasis
thantheauthority of the masteroverthe slave.The theoryof
agreement or contractdoes notfillthegap Hobbes discovered
in theAristotelian traditionof civilsociety;takenbyitself,it is
a legal formalism whichwas also capable of beingadopted by
thosewho- likeJohnLocke- did notseriouslybreakwiththis
traditionand did not see any contradiction, for example,in
the assertionthatcivilsocietywas based on a contractand yet
at the same time,in itsoriginand purposes,was foundedon

10Leviathan 1. ii, c. xvm.

11Cf.
J.-J.Rousseau, The Social Contract,or Principlesof Political Right,edited by
Charles M. Sherover (New York: New American Library, 1974), pp. 7, 13-15.

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 CIVIL SOCIETY IN KANT 597

an unchangeablelaw of naturewhichimposeditspurposeon
the partiesto the contract.12
Even when Locke adopts the Aristoteliandistinctionbe-
tweenciviland despoticdominationforhis agreement-theory
thisdoes not change the factthathis theory
of civilsociety13
containsabsolutelyno criterionforthe legal impossibilityof a
despoticdomination, but indicates merely that the master-
slave relationshipis acceptedas a historicalfact- not unlike
the German School Philosophyof the eighteenthcentury,
whichdid not considerthe statement,that in the state of
nature man is his own master(sui juris) or free, to be an
obstacleforthe renunciation of thisfreedom:it merelystates
thatsubjectionto dominationby anotherrequiresthe agree-
ment(consensus) of the subject.Accordingto the viewof the
GermanSchool Philosophy, such renunciation lies at thebasis
of all "humansocieties."It therebymerelyfollowsthe previ-
ouslydiscussedAristotelian doctrineof the indigenousunity
of communication and domination("Imperium omnenascitur ex
societate").14

ofClassicalLiberalism:TheLegitimation
ThePoliticalPhilosophy of
CivilSocietyin Kant

The combination of thetwoconceptsof communication and

dominationinto an apparent natural unity,which Hobbes
achievedin a veryartificial
mannerby connectingthe theory
of contractwiththetheoryof domination,was tornapartfirst
by Kant. Here he was followingthe example of Rousseau's
Contratsocial(1762), whichKant had alreadyrecognizedrela-
tivelyearly(between1764 and 1768) as the"ideal"of political
philosophyand whichhe opposed, as "civicunion," to the
12
JohnLocke, SecondTreatiseofGovernment
, in Two TreatisesofGovernment
, edited by
PeterLaslett(New York: New AmericanLibrary,1977),pp. 366-367.
13Locke, Second Treatise Government,
c. xv, sec. 174.
of
14ChristianWolff,
Jusnaturae(1751), 1. vu, c. i, sees. 195-196.

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598 SOCIAL RESEARCH

Leviathanof Hobbes- the paradigmof the modernstate.15

This union is forKant foundedon a principlethatwas miss-
ing not onlyin thepatumsocialeof Scholasticnaturallaw but
also in the unio avilis of Hobbes: the legal principleof the
of man'sfreedom.It is onlynow thatthe condi-
inalienability
tions possiblecommunication
of betweenhumanbeings- that
is, theirhumanity, whichHobbes stillconceivednegatively in
the doctrineof naturalfreedomand equality - are admitted
intotheconceptsof politics.Accordingto Rousseau,the right
thatman has by natureis notrelatedto theendswhichnature
(thenatureof thingsand hisown nature)grantsto him,but to
Hobbes had evaded this de-
freedomas thebasis of all rights.16
terminingground so that the essence of his constitutional
law- thecontractof dominationnecessaryfortheconstitution
of thesocietas avilis- coincidedonce again withthe principles
of the older theoryof naturallaw. The dependencyof the
conceptof the rulingauthority as a positiveand historicalfact
connectedwithrenewedcoincidenceof constitutional law with
naturallaw is one of the most importantpoints Rousseau
criticizesin Hobbes's theory.The contrat socialis, accordingto
the declared intentionof the author,opposed to the legal
principleof the older theoryof civil society,the arbitrary
renunciationof rightseither to a private person (in the
master-slave relationship)or to specialgroups(in thegranting
of privileges)or finally the person of the ruler. For the
to
individuals,accordingto Rousseau,can onlyrelinquishtheir
naturalrightsunder the conditonthattheyreceivein return
an inalienableright:to be safe fromall particular(factual)
formsof domination.The act of constituting civil societyis
equivalentto the constitution of the generalwillto whichall
are subject.As such, nobody is dependent on the will of
anotherindividual,but rathereveryoneis dependenton his
own will.17
15Immanuel Kant, Gesammelte Schriften[hereinafterGS], the Prussian Academy of
Sciences Edition, 22 vols. (Berlin: G. Reimer, 1902-38), 19: 98, Reflection6593.
16Rousseau, Contratsocial 1. i, c.
iv; Emile 1. h.
17Rousseau, Contratsocial 1. i, c. vi-vm; 1. h, c. ii-m.

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 CIVIL SOCIETY IN KANT 599

I am goingto bypasstheparadoxeswhichresultfromRous-
seau's constructionof the contract.These paradoxesconcern
theinstitutionalrealizationof thegeneralwillin a community
and finallylead Rousseau'spoliticaltheoryback to theancient
polis. Kant was able to avoid them by the methodof tran-
scendentalphilosophy.He conceivesthe social contractor
contract of agreement (pactumsociale= pactumunioniscivilis)
not as a factbut ratheras a normbased on a prioriprinciples
of reasonand therefore thestandard("idea") of civilsocietyas
an appearance.Withthe help of the reflections on legal and
moral philosophywrittenduring the 1760s and 1770s and
found in the posthumousworks,one can followhow the
conceptof the contract, in connectionwiththeconceptof the
general will,departsfromthe contextof constitutional law
and the orientationtowardthe empiricalelementsof natural
law whichsometimesdominatesRousseau'swritings.Kant is
able to accomplishthisessentially because he does not relate
the generalwill to the social contract,whicheven Rousseau
stillinterpretedas a fact,but merelyto a social principleof
reason whichhe calls the rightof humanity, that is, possible
communicationbetweenhuman beings. From this righthe
thenderivesthe legal possibility of thecontract.This is some-
thingRousseau had leftentirelyunresolved:theContrat social
did of courselegitimate and
subjection thereby established the
of a coercivepower,but the question,what
legal possibility
makesthe contractitselflegitimate, remainedunanswered.It
is at this point that Kant's introductionof transcendental
method into politicalphilosophyaddresses the argument.
Whatmakesthe contractobligatoryforeveryoneis the right
of humanity,the only conditionof whichconsistsin using
one's freedomin conformity withpossiblecommunication, the
a prioriprincipleof civilsocietyin general.Everyhumanbeing
has therightof restricting thefreedomof everyotherhuman
being to thiscondition which is tied to the possibilityof free-
dom itself.The correlationof right,freedom,and the restric-
tion of freedomto the formalconditionof the agreement

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600 SOCIAL RESEARCH

concerningitsexternaluse- thea prioriprincipleof thepossi-

bilityof communication - is also called the law offreedom by
Kant. The objectiveobligationof thislaw correspondsto the
subjectiverightof every individualto compel every other
individualto thelawfulexerciseof freedom.Rightis notto be
regarded,however,as composed of these two differentele-
ments,for as Kant says, "the conceptionof rightmay be
viewedas consisting immediately of a univer-
in thepossibility
sal reciprocalcompulsionin harmonywiththe freedomof
all."18Therein lies the fundamentalproblemto Kant's doc-
trineof rightas wellas the solutionit offersforthe problem
of legitimatedominationand civilsociety.Kant'slaw of free-
dom not only means the restriction of the freewillof every
individualbut and thisis the decisivepoint- the restriction
-
of compulsionto exactlythat conditionedcommunication
whichthe law itselflaysdown. The systemof the doctrineof
human rightis entirelydependenton the questionof how
compulsion(and thatalso means:universalcommunication) is
possiblegiven the presupposition of a rightwhich belongsto
man byvirtueof his humanity. The contrastto thetraditional
mannerof dealingwiththeproblemof legitimate domination
is obvious.If I had to expressit in one sentence,I wouldsay:
Dominationand communication on theone hand,compulsion
and freedomon theother,are forKantno longeropposed to
each other,but ratherunifiedin the conceptof legitimate
domination(enabling everyoneto exercise their freedom).
Freedom,understoodas the legislationof practicalreason,
demands for itselfexerciseof dominationbased on agree-
ment,but in the formof legal compulsion.As such,the exer-
cise of freedomby everyindividualis restricted to the condi-
tionsof itspossiblelawfulagreementwiththe freedomof all
otherindividuals"and maybe thuslimitedin factby others,
18Introduction
totheDoctrineofRight, sec.E, inGS 6: 232. In regardto this,seeJulius
Ebbinghaus,Gesammelte Aufstze,
Vortrge undReden(Hildesheim:G. Olms,1968),pp.
274Tas wellas K.-H. Volkmann-Schluck, "Der Ursprungdes Rechtsstaats aus der
Idee der Freiheit,"in his Politische
Philosophie(Franfurt:Klostermann, 1974), pp.
96-128.

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 CIVIL SOCIETY IN KANT 601

and it [reason] lays thisdown as a postulatewhich is not capable

of furtherproof."10
What does a postulate mean according to transcendental
philosophy? It is an immediatelycertain practical proposition
or a principle determininga possibleactionwhich presupposed
that the nature of the action is immediatelycertain.20What is
immediatelycertain in the field of practicaljudgment about
communicationis the necessityof a connection between free-
dom and compulsion in the concept of external human free-
dom. According to that concept, on the basis of the practical
reason common to all everyone has the right in regard to
everyother individual of restrictingthe other's freedom to the
conditions of its possible lawful agreement with one's own
freedom. What Kant has exposed here with this formula is
nothingless than the legal obligationof the contract,which is,
of course, not only immediatelycertain, but also, as is right
itself,an idea or a normativepracticalconcept;it is the idea of the
a priori unified will of all (Rousseau's general will), which
according to Kant formsthe norm forjudging what is practi-
cally rational in the realm of human communication.
The legal necessityor, if you will, the legitimationof the
contractthroughthe a priorinormativeconcept of rightmakes
it impossible for Kant to interpretthe contractas a fact. Kant
was the firstphilosopher consistentlyto maintain the distinc-
tion between fact and norm in the theory of contract or,
formulatedin modern terms,the distinctionbetween descrip-
tive and prescriptivestatements.The idea of the original con-
tract,according to the appendix to the firstpart of theDoctrine
ofRight,is a concept of practicalreason to which no empirical
example can adequately correspond, but which,as a norm, no
case may contradict. "Fact" is defined here by Kant as an
object of appearance (to the senses)- and this was the way the
French revolutionariesunderstood the contratsocial: as a real
act and the historicalfoundationof the new constitutionbased
^Introductionto theDoctrineoj Law, sec. C.
20
Logic, sec. 38.

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602 SOCIAL RESEARCH
on the declarationof humanand civilrights.A norm,on the
other hand, is a mere idea of reason, but one possessing
reality,thatis, obligationand universalva-
objective-practical
lidityforthe formation of publicopinionand willand forthe
rationaldetermination of communicative actionas wellas for
withinwhichthisactiontakes place.
the institutions

The Aporia of Normand Fact on the Classical Liberal

Theoryof Legitimation

Whereas new empiricaland normativeconcepts are no

longerintermixedin the theory as theywere with
of contract,
Hobbes, Kant tacitlyreintroduces empiricalconceptsintothe
normativeapproach in the subsequentconstruction of thecon-
tractof civil society.He therebycontradictsthe underlying
premisesof the transcendental construction.For a philoso-
pher of Kant'sstaturethisis an unusual procedureand one
whichdeservescloserexaminationand analysis.Having con-
ceived of the contractas a norm and not as a fact, it
becomes- that is the premise of the transcendentalcon-
struction- the standardby which civil societyis judged in
its historicalmanifestation.Civil society,understoodas the
appearanceof thea prioriwillof all unifiedin the idea, is not
now the cause of the contractof agreementbuttheresultofit:
"The civilconstitution but accordingto rea-
is not arbitrary,
sons of rightnecessaryfor the securityof the other [in-
dividual].Societyis not thecause of thisconditioneither,but
rathertheresultof it.The practicalsovereigngroundof right
makes society."21 So it appears that dominationitselfthus
merges completely with agreement - in the "sovereign"
groundof rightwhichallowsonlylegalcompulsionand which
accordingto Kantoriginatessolelyin the conceptof freedom
in its externaluse.

21GS 19: 533, Reflection7847.

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 CIVIL SOCIETY IN KANT 603
The construction of the lawfulcivil society,however,de-
viatessomewhatfromthis picture.This construction, which
referredto the declarationof human and civilrightsby the
FrenchNationalAssembly(1791), was firstpresentedby Kant
in an essaywhichappearedat thebeginningof the 1790s:"On
the Common Saying:This May Be True in Theory,but It
Does Not Apply in Practice"(1793). It was later adopted
withoutanychangesin the secondpartof theDoctrine ofRight
(1797). It is based on three"a priori
principles"which claimto
representpure rationalprinciples of external human right:
1. Thefreedom of everymember of societyas a human
being.
2. The equality
of each withall theothersas a subject.
3. The independence
ofeachmember ofa commonwealth as a
citizen.22

The firstand secondprinciplesare, as are the principlesof

the Dclarationdes droitsde l'hommeet du citoyen,diametrically
opposed to the legal principleof the traditionalcivilsociety
which was hierarchically structuredand conceived only in
termsof natureand naturallaw. The rightof freedomthat
everymemberof thesocietalhas negatesthe rightsand free-
domsofthecorporations, thecitiesand communities,
landown-
ers and classes. It is the rightof the emancipatedand free
man who,havingeliminatedthe privilegesof the traditional
civilsociety,is concernedwithhimself,pursueshis own hap-
piness,and acts accordingto his own privatefreewill.Kant
expressesit in the following"formula":
Foreachmayseekhishappiness in whateverwayhe seesfit,so
longas he does notinfringeupon the freedomof othersto
pursuea similarend whichcan be reconciled
withthefreedom
of everyoneelse within
a workable generallaw- i.e.,he must
accordto othersthesamerightas he enjoyshimself.23
22GS 8: 290; 6: 314; cf. the workto theDoctrine
ofRight,GS 23: 293
preliminary
("Three Principlesof UniversalHuman Rights")and thepreliminary workto Theory
andPractice,
GS 23: 136("Everymemberofa nationhasa threefold qualityin relation
to the government").
23GS 8: 290.

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604 SOCIAL RESEARCH

The rightof freedomincludeslegal equality,the equalityof

men as "subjects."It designatesthe uniformity of humanbe-
ings as subjectsin the realm of civil domination - the legal
equalityof all as equallysubjectto theuniversallawswhichthe
modernconstitutional state has codified.The same thingis
expressedin Kant's formulaof right,wherebyrightpresup-
poses therestriction of the freedomof everyindividualto the
conditionof its agreementwiththe freedomof everyother
individual.
Consideredfromthe pointof viewof the firstand second
principles,the only legal consequencewould have been for
Kant,in conformity withtheextensionof thestatusof "citizen-
to
ship" "every human beingin the state,"to use the concept
of civilsocietyin thesenseof "civicunion,"thatis, the totality
of personsfree and equal beforethe law. He is prevented
fromdoing this,however,by the peculiarconceptionof the
thirdprinciple,the "independenceof each memberof a com-
monwealthas a citizen."Due to theformulation of thisprinci-
ple the transcendentalmethod of practicalargumentation
shiftsto the empiricaland social realm.As a result,the con-
stitutionof civil societybreaks down in the mediumof the
traditionalsocietasavilis of natural law. I am not going to
discussin detailthereasonsforthisconspicuousfailureof the
Kantiantheory.Rather,I willsummarizethemin a fewtheses.
The firstthesisis thatthe aporia of norm and fact,which
thusentersinto the conceptof civilsociety,is caused essen-
tiallyby Kant'sintroduction of the predicate"independence"
As
(sibisufficientia). an a prioriprinciple,unprovenand as such
unprovable,it standsabove the transcendentally and legally
foundedprinciplesof freedomand equality;and it insteadof
themformsthe differentia of the conceptof citizen-
specifica
ship. It is not the legal principle freedom,whichis equally
of
validforeveryone,butthefactof independence,whichcannot
be determinedby formallegal means,thatqualifiesan indi-
vidualforparticipation in therightof civilsociety,therightof
"colegislation":

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 CIVIL SOCIETY IN KANT 605

The independence of a memberof the common-

[sibisufficientia]
wealthas a citizen,i.e., as a colegislator,
maybe definedas
In thequestion
follows. ofactuallegislation,
allwhoarefreeand
equal underexisting publiclawsmaybe considered equal,but
notas regardstherightto maketheselaws.24

The rightto legislateis undoubtedlythe mostimportant right

in the "originalcontract"which Kant had cleansed of the
traditionalpremisesof naturallaw and placed at the basis of
hisidea of an a priorilawfulconstitution of civilsociety.If it is
restricted, then the purification was either incompleteor
merelypretense.
The secondthesisis that the incompleteness of the critical
purification correspondsto thedependenceof theconception
of contractin naturallaw on empirically givenfeaturesof civil
society.The originalcontract, whichaccordingto itsown idea
is supposed to substitute universallegislationbased on the a
prioriunified will of all for all particulardominatingau-
thorities,incorporates dominationintoitselfin suc a waythat
it becomesimmanentto the originallegislation.Whatis rein-
troducedin theoriginalcontract,as in modernnaturallaw in
general,is theparadigmof civilsociety(societas civilis)foundin
classicalpoliticalphilosophy.The difference is thatthe foun-
dation of civilsocietyon a contractconceals the exerciseof
dominationbehind the universality of compulsionwithout
in
succeeding making it "universal."
Qualification as a partyto
the contract,as a citizen,presupposes"the independenceof
whoeverin a nation wantsto be not merelya part of the
commonwealth, but also a memberof it,i.e., whoever,of his
own freewill,wantsto be in associationwithothersthe active
part of the commonwealth."25 Thus the pure spontaneity of
civicaction,whoseexpressionis the legislationof thea priori

24GS 8: 294. The

principle of independence also refers thematically to the
traditionaldistinctionbetween "despotic" and "civic" domination; cf. the preliminary
work to Theoryand Practice,GS 23: 136-137, the "Explanation: Against Despotic
Government."
25Doctrine
of Right,n, sec. 46, in GS 6: 314.

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606 SOCIAL RESEARCH

unifiedwillof all (thepactumcivilesivesociale),is restricted

to
thiscondition.The abilityto participatein legislationis, to-
getherwiththe originalcontract,precededby independence
condition.Whatis supposedto be validforthe
as a restricting
mere"idea of reason"(theoriginalcontract)drawsitsvalidity
fromthe sphereof appearances.In the preliminary workto
Theory and Practice,Kant noted:
One mustalreadyhavecitizens, however,beforeone can have
subjectsof thestate.Thus,in respectto thecommunity, the
pactumcivileis a precedingcondition,onlythatindividuals
whoseexistence uponthewillofanother
is dependent and who
thereforedo notenjoya freeexistence haveno vote.26

Whileit is supposed to legitimatecivicdominationaccording

to a prioriprinciples,the originalcontractis, withrespectto
the "rightto vote,"justifiedaccordingto an a posteriori
princi-
ple which under closerexaminationturns out to be the politi-
cal principleof the classicalparadigmof civilsociety.27 The
normative and legal consequences of the contract are
obstructed,as it were,by thisrecourseto the sphere of ap-
pearances.
The thirdthesisis thatKant,in theory,tacitlyassumescom-
municationwithoutdominationbecausehis conceptof citizen-
ship conformsto the modelof the citizenestablishedby Aris-
totleand the Aristotelian tradition.In the sphereof appear-
ances, the which
society thecontractis supposedto schematize
is based on the conceptof the economically and legallyinde-
pendentcitizen,whoseonlyqualityis thathe "mustin thetrue
sense of the wordserveno one but the commonwealth."28
26GS 22: 137; cf. GS 8: 295. The same restriction can be found,by the way,in
Rousseauas wellas the FrenchEncyclopedists pointedout by
as has been correctly
Iring Fetscher,Rousseauspolitische (Neuwied: Luchterhand,1960), pp.
Philosophie
261ff;cf.Diderot,"ArtReprsentants," in Oeuvres(Lyon,1792),10: 108; D'Holbach,
SystemeSocial(1773), 1. il, e. iv.
21Doctrine
of Right,h, sec. 46, GS 6: 314: Theoryand Practice,GS 8: 295.
HGS 8: 295. Ct. the following
thesis:"Ihose who are notentitledto tnisngntLot
are nonetheless
legislation] obliged,as membersofthecommonwealth, tocomplywith
theselaws,and theythuslikewiseenjoytheirprotection" (GS 7: 294).

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 CIVIL SOCIETY IN KANT 607

In this respecthe differsfromthe person who earns his

living"byallowingothersto makeuse of him,"whois merelya
"helper in the commonwealth"29 - -thefarmhand, domestic
servant,laborer,in short,the classof the "dependent,"which
has, accordingto Kant,no lawfulpublicpositionwithincivil
underscoredby a commenton the
society.This is drastically
relationshipbetween the citizen'and servantwhich is also
found in the preliminary workto Theory and Practice:
A citizenis a humanbeingin society whohas hislawfulinde-
that
pendence, is, someone who can be consideredas a member
of theuniversal of Consequently,
publicauthority legislation. a
servantis a humanbeingwhois merely rootedin othercitizens
as a parasiticplant.30
For those who depend on the substanceof the "household"
of "dependencefrom
the propositonof the legal impossibility
domination"has onlylimitedvalidity;fortheyare "helpers"of
thecommonwealth onlybecausetheir"economic"dependency
correspondsto the appropriationof politicalpower on the
- because they"mustbe commandedor
part of the citizens
protectedby otherindividualsand thereforepossessno civic
independence."31
Not withoutreasonhas it been said thathere,and through-
out all modernnaturallaw,the idea of rightis stillclothedin
whatseems to be a "feudal"garment.32
One has to disregard,of course,the somewhatinappropri-
ate word "feudal,"not only in respectto Kant but also in
regardto otherauthors,because it undulyshortensthe his-
toricalhorizonwe are dealingwithhere. Kantdid occasionally
considerthe idea, onlysubsequentlyto rejectit, however,in
the concernwith

2iiGS 7: 295.
30GS 23: 137.
31GS 6: 315.
32Cf. Wilhelm Recht und Staat in der Ethik des deutschen
Metzger, Gesellschaft,
Idealismus
(Heidelberg:Winter,1917),pp. 98-99.

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608 SOCIAL RESEARCH

. . . whetheronly an individualwho is a landownercan be a

citizen,i.e., whetherthe quality of a citizenand therefore
memberof thepubliclegislationmustprecedethepossessionof
land or mustbe establishedsolelyon it.33

As opposed to all effortsof the romantic and conservative

theories of state in reaction to the French Revolution to ex-
plain societysimplyfrom the point of view of a theoryof the
legal ("feudal") consequences of the ownership of land, Kant's
politicalphilosophybelongs to the larger paradigm of a "civic"
oriented philosophy of institutionsin Europe which stretches
from the period of high Scholasticismto the eighteenthcen-
tury.34
Nonetheless, in several passages of the text under consid-
eration it becomes clear that the representationof "civil soci-
ety" in Kant's transcendental politics already stands at the
close of this era.35 Confronted with the principlesof freedom
and equality,the principle of independence causes a number
of difficultiesin the definition of the concept of a citizen
which did not exist for the traditionalpolitical theories.
Myfourththesisis that the reason for these difficultieslies in
the confrontationof the firstand second principles with the
third,whichcan in no way be justified on a normativebasis. It
is noteworthythat, in regard to the foundation of his own
politicalphilosophy,Kant himselfpoints out the contradiction
which resultsfrom the introductionof this categoryfrom the
traditionalparadigm of civil society.Not only does he "admit
that it is somewhat difficultto define the qualificationswhich
entitleanyone to claim the statusof being his own master,"but
he also notes that the distinction between the "active and
33Cf. the
preliminarywork to Theoryand Practice,GS 23: 137. This is a direct
consequence of the idea of the a prioriunified will as a condition of the possible
acquisition of property in general; cf. Gerhard Lehamnn, Kants Besitzlehre(Berlin:
Akademie-Verlag, 1956), p. 10.
34This
misconceptionalready begins with the pseudo-Kantian Schmalz, who mis-
understood Kant in this point as well; cf. Das RechtderNatur (1795), vol. 2: only the
"landowners" are citizens,all the other parts of the population are "cohabitants."See
also L. H. Jakob, PhilosophischeRechtslehre (Halle, 1795), pp. 472-473.
**GS 23: 136.

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 CIVIL SOCIETY IN KANT 609

passivecitizenof the state"derivedfromthiscategory"ap-

pears,"whenwe considerthelatter,"to standin contradiction
to the explanationof the conceptof a citizenof the statein
general."36 The difficulties
whichare also expressedexplicitly
in the presentation of Kant'stheoryresultfromthe factthat
on theone hand the"qualityof man to be his own master[sui
is containeda prioriin theone innateright,the human
jris]19
rightof freedom,whichformsthebasisof thefirstand second
principlesin theconstruction of the contractof civilsociety.37
The introduction of independenceas the thirdprinciplecom-
pels Kant to use this conceptdifferently.38
For now the qualityof man as suijuris is givena meaning
whichis takenfromthecharacteristic . The
of thepaterfamilias
systematic locationof theprincipleof independencewithinthe
Doctrine ofRightis the"Rightof the HouseholdSociety,"which
Kant deals withunder the revealingtitleof a "personalright
in respectto things."30 Seen fromhere,the "examples"Kant
uses in his effortto eliminatethe"difficulty"presentedbythe
definition of the conceptof a citizenbecomeunderstandable.
36GS 8: 295n; 6: 314.
37 Introductionto the Doctrine
of Right,GS 6: 237-238. Cf. Kurt Borries, Kant als
Politiker(Leipzig: Meiner, 1928), pp. 95-96, who maintainsthatfor Kant himselfwhat
"logically"results from this innate rightis that the civil constitutionrests "merelyon
the abilityof the individuals in theirrelationswithone another to behave toward one
another in conformitywithexternal laws" (GS 23: 137). Borries, however,quotes only
half of the sentence; Kant adds: "and there one has firstto be a citizen."
38Cf. the
divergent constructionin PerpetualPeace (1795), Second Section, First
DefinitiveArticle,according to which a civil constitutionis founded on: "firstly,the
principle offreedomfor all members of a society(as men); secondly, the principle of
the dependence of everyoneupon a single common legislation(as subjects); and thirdly,
the principle of legal equalityfor everyone (as citizens)"(GS 8: 349). Recently,J.
Ebbinghaus, "Das Kantische System der Rechte der Menschen und Brger," Archiv
fr Rechts-und Sozialphilosophie 50/1 (1964): 48ff, has once again made the effortto
save "independence" as an a priori principle of law. Apart from the fact that his
interpretationthat here we are dealing with something that is "specific to Kant" is
historicallywrong,even Ebbinghaus is unable to retain the meaning that Kant actually
connected withthisconcept. The limitationswhich he sees himselfcompelled to make
("conditional participation of dependents in legislation") are plainly irreconcilable
with Kant's construction.
39Cf. Doctrine
of Right,i, sees. 22ff,in GS 6: 276ff; cf. also GS 20: 240ff,which was
provoked by the reviewer from the Gttingischen Gelehrten Anzeigen,28th copy, Feb.
18, 1797, who rejected this section as "the new phenomenon in the juristicheavens."

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610 SOCIAL RESEARCH

They belong to the conceptionof the "household" as the

manorialand economicsphereof civilsociety,fromwhichthe
laborers,as dependenton the master'spower of disposition
over the materialand means of production,are excluded:
The journeyman to a merchant or tradesman; the domestic
servant... all femalesand in generaleveryone whodoes not
obtainthemeansof his existence (sustenance and protection)
throughhis own trade,but ratheris necessitated to acquire
thembybeingat thedisposalofothers, is nota civilpersonality
and hisexistence is,as it were,merely an accident.40
Such individualsare mere operarti (laborers)for whom only
thepraestatiooperae(the guaranteeof theirlabor) is possible,
not the productionand disposalof an opus(work).The ques-
tionarises,however,whytheconnection,whichis unquestion-
ablythere,betweenthe thirdprinciplein the construction of
the contractand the "Rightof the Household Society"does
not become more apparent systematically in Kant's tran-
scendentalpolitics.
My answerto thisis containedin a fifththesis:Because as a
consequenceof the predominanceof publicrightover private
right,the traditionalfoundationof the rightof civilsocietyin
"domesticsociety," thedominationof a freemanovera house-
hold and its members,is entirelyforeignto the Kantiandoc-
trineof right.Only the schemeof the conceptsremains;the
conceptsthemselves have changed.One willhave to look here
to findthe actual source of the "difficulties" Kant speaks of
and the solution provided for them. Domination over a
householdis not requiredin order to be, as a citizen,one's
own master(suijuris); it is sufficient just to have "anypiece of
property" and to sell it,whereby it is presupposed,according
40GS 6: 314; 8: 295. The connection to the
"Right of the Household Society"does
not, of course, prevent Kant from conceiving only of those who are the "domestic
servants" as "integral parts of the household" (GS 12: 180-181; 6: 361). What is
decisive is the domesticand patriarchalformof the processes of production that gives
the examples an unmistakable metaeconomic character and the consequences drawn
from them in regard to civil law the curious unintelligibility which interpretersof
Kant so often lament. Cf. Hermann Cohen, Kants Begrndungder Ethik, 2nd ed.
(Berlin: B. Cassirer, 1910), p. 527; Borries, Kant als Politiker,pp. 99-100.

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 CIVIL SOCIETY IN KANT 611
to the principlesof freedomand equality,that "everybody"
can acquireor sell propertyand so "worktheirwayup from
the passivestatusto the activeone."41
In thisway the firstand second principlesof Kant's con-
structionof the contractfora lawfullyconstituted "civilsoci-
ety" could be aligned with the third,at the cost,however,of
the a prioristatusof "independence."The subsumptionof
independenceunderthecategoryof "property" indicatesthat
it has been introducedby Kant intothe contingent sphereof
commodity in
exchange society.The a priorilegalconstruction
of the originalcontractprescribing communicative actionfree
of dominationdescribesat the same timea societywhichno
longercoincideswithitsown name ("civilsociety"in thesense
of a pure societyof right).It is clear thathere we are dealing
withtheliberalideal of emancipation whichKantis advocating
in oppositionto the social and class constraints in regard to
property and the legal restrictions to its acquisition.This
means,however,thatthe modelis incompatible preciselywith
those elementswhichconstituted"independence"as a legal
principlein the traditionalparadigm of civil society.This
would explain the ambivalenceof the transcendentalcon-
structionof the originalsocial contract.The same concept,
whichit retainsand normatively justifiesas an a prioriprinci-
ple, is abandoned a at
posteriori foundation,the ownership
its
of the property.Independenceas a privilegeof the "citizen"
becomes the rightof "man," a rightthat "everybody"can
acquire.The transcendental construction presupposesa social
sphere of unobstructed exchange of propertyand com-
moditieswhichwouldfreetheformalism of thecontractwhile
the
lacking capacity, however, to representand delimitit con-
ceptually.For Kant this sphere is only a secondaryconse-
quence of the a priorilegal construction of civilsociety;and
thisis whyhe does not realize thatthissocietysuddenlyas-
sumes a new form - thatthe conceptof rightwhichmerely

41GS 6: 375.

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612 SOCIAL RESEARCH

seemsto implymutualfreedomand equalityhas as itsconse-

quence one-sideddependencyand renewedinequality.
This is the fundamentalaporia of Kant's transcendental
politicswhichhe bequeathedto nineteenth-century liberalism.
On the basis of my deliberations,I thinkI can rightfully
concludethatthe impossibility of solvingthisaporia in terms
of classicalliberalphilosophyis due in no small part to the
metaphysical presuppositionsof theclassicalparadigmof civil
societywhichKant adopted,along withthe conceptof legiti-
matedominationunderlying them,fromtheprevailingtheory
of naturallaw,and whichhe attempted - contraryto the im-
-
plicationsof the theoryof contract tojustifynormatively. In
contrastto the liberalphilosophyof the constitutional state,
the socialtheoryof the nineteenthcenturywas more percep-
tiveand realizedthatthea prioriunifiedwillof all containedin
the theoryof contract,theuniversal will,is notuniversalat all,
but ratheris violated in its formala prioriuniversality by
materialsuppositions.The state,as we can read in Marx,does
not existthrougha universalrulingwillbut ratheremerges
out of thematerialformsof existenceof individualsand takes
on "theformof a dominatingwill"42 whichmakesthestatean
illusionarycommunity for the dependentclass. Marx's crit-
icism sagaciouslyuncovered the deficienciesof the liberal
theoryof legitimation; but at the same timeit sacrificedthe
meritsand usefulnessof the contracttheoryas a formalstan-
dard forthejudgmentand practicalregulationof thematerial
and social livingforms.Consequently,in the paradigm of
whichMarxsubstituted
sociality forthecontractof naturallaw
in the GermanIdeology(1845) and in the Communist Manifesto
(1848), in the paradigmof associationin which the free develop-
mentof everyindividualis theconditionfor thefree developmentof
all, the idea of rightand of the a prioriunifiedwill of all
disappears as a referencefor the practicaland normative
judgmentof such "development."This can only mean: the
of communication
disappearanceof the possibilities and par-
42DeutscheIdeologie,in Karl Marx and Friedrich Engels, Werke,39 vols. (Berlin:
Dietz, 1958-68), 3: 312.

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 CIVIL SOCIETY IN KANT 613

ticipationfor individualsin a society.The aporia of the

societalparadigmis thatit providesno meansof avoidingthe
overthrowof reason and the irrationality of the factualbe-
comingnormative,the processwhichcaused the demise of
liberaltheoryand sincethenhas becomethecommonground
of theotherwiseso divergentschoolsof historicism, positivism,
and historicalmaterialism.
In thissituation,whichis essentially
theone confronting us,
it willbe necessaryonce again to guide our thinking concern-
ing the between
relationship communication, domination, and
participation accordingto the point of view and methodical
of
possibilities practicalphilosophy - a disciplinethat,signifi-
cantlyenough, died in the same era in which natural-law
conceptsand formsof argumentation were also abandoned
and forgotten. The fundamental conceptsof naturallaw,such
as the stateof natureand the contract, were consideredto be
erroneoussimplybecause they were unhistoricaland non-
sociological,foreignto real livingconditionsand social pro-
cessesor merelydistorted reflectionsofthem.In truth,theyare
theelementsof an a priorinormative constructionwhichhas as
its task the methodical
construction domination
of legitimate in ref-
erenceto thepossibility
of communication about as well as partici-
pationin civicinstitutions
and the modesof actionappropriate to
them.The elementsof the contractwere not introducedto
explain the beginningand originof the state,but ratherto
establishits ideal norms,their gradual formation,and the
basis of theirvalidity.In any event,the thesisthathistorical
origin and normativeconceptual constructionare to be
throwntogetherindiscriminately definitelycontainsa dog-
maticassertionwhichhas yetto be proven.The toolsof the
philosophical analysisof language,thehistoryofconcepts,and
themethodsof practicalargumentation, however,permitus to
examinethese elements.It is conceivablethatafterthis ex-
aminationand a criticalinquiryintothetraditionof thepoliti-
cal theoryof naturallaw we willbe able to rehabilitatesuch
paradigmsas thecontractand use themas thefoundationfor
a philosophyof civicinstitutions.

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