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Autonomy and Republicanism: Immanuel Kant's Philosophy of Freedom

Author(s): Heiner Bielefeldt


Source: Political Theory, Vol. 25, No. 4 (Aug., 1997), pp. 524-558
Published by: Sage Publications, Inc.
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AUTONOMY AND REPUBLICANISM
Immanuel Kant's Philosophy of Freedom

HEINERBIELEFELDT
Universityof Bielefeld

INTRODUCTION:THEPARADOXOF LIBERALISM

Since its origins in early modernity,liberalismhas always been a hotly


debatedissue. A chargefrequentlybroughtforwardis thatliberalismmirrors
a lack of ethicalsubstancein modernsociety,a society which seeminglyloses
its inner normativecohesiveness and hence can be held togetheronly by a
set of abstractproceduralrules. By providingsuch a formalframeworkfor a
modus vivendi withinan "atomizedsociety,"liberalismpurportedlyamounts
at best to a minimalisticandformalisticmorality,if not to an immoralattitude
of self-centeredindividualswho are chiefly concernedwith their own well-
being. This charge of ethical minimalismand abstractproceduralismoften
goes along with the allegationthatliberalismalso lacks a genuinelypolitical
purpose. Although, as a matterof fact, liberals have always been involved
with politics, such political activities are said to derive primarily from
nonpoliticalinterests,thatis, privateandeconomic interestswhichultimately
prevail over republicancommitment.From such a point of view, liberalism
seems to constitutea bourgeoisideology of "possessiveindividualism"rather
than the joint projectof citizens who sharesome political convictions as the
basis of a "strong"participatorydemocracy.

AUTHOR'SNOTE: On earlier versions, I received helpful commentsfrom Ronald Beiner


WinfriedBrugger,CarolynnCoburn,David Dyzenhaus,JamesHerget,ErnestJ. Weinrib,Susan
Zickmund,and an anonymouscommentatorI also owe thanksto themanyinsightsof thestudents
who participatedin a graduate course on Kant'smoral and political philosophy,which I gave
at the PhilosophyDepartmentof the Universityof Torontoin the spring of 1994. I would like to
thank WayneSumner,then head of the Philosophy Department,for his and the department's
hospitality.I also wouldlike to expressmygratitudeto theAlexandervon HumboldtFoundation
for havingfacilitated my stay in Toronto.

POLITICALTHEORY,Vol. 25 No. 4, August 1997 524-558


? 1997 Sage Publications,Inc.
524
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 525

Curiously,it is not only anti-liberalswho in such a way depict liberalism


as a merelyproceduralframeworkfor a societalmodusvivendi or a bourgeois
philosophy of economic well-being. Not infrequently,liberals themselves
tend to share this perspective. Many liberals seem reluctantto profess a
comprehensiveethical conviction or a strongrepublicancommitment,thus
leaving the invocation of "civic virtue" to their conservative critics. One
reasonfor thisreluctancemay be the fearof moralguardianship, thatis, the fear
thatgovernmentcould claim the authorityof a moraleducatorat the expense
of the moral autonomyof the individual.Anotherreasonmay be respect for
ethical and political pluralismin modernsociety, a pluralismwhich appar-
ently requires self-restraintin the appeal to common ethical or political
principles.
These reasons for the liberalreluctanceto conjureup moraland political
claims are indeed partlypersuasive.The persuasivenessof these arguments,
however,rests on the fact thatthey themselvesepitomize a genuinelymoral
concern;namely,the concernfor every person'smoralautonomy,as well as
concern for ethical and political pluralismin modernsociety. It seems to be
a paradox that the liberal reluctance in appealing to common moral and
political principles is itself based on a moral and political conviction, a
conviction which neverthelessrarelyfinds clear expression.
I believe that liberalism is indeed much more morally and politically
demandingthan many liberals may be aware of. This lack of liberal moral
awareness,however,is problematicbecause it rendersliberalismvulnerable
to anti-liberalpolemics and, at the same time, may blur the distinction
betweena genuinelyethicalandpoliticalliberalismon one handanda merely
bourgeoisattitudewhich often is also labeled "liberal"on the other.Liberals
shouldthereforetryto develop a higherdegreeof sensitivityto the normative
ideas underlying the modern struggle for democracy, civil liberties, and
universal human rights, ideas which essentially belong to the history of
modernliberalism.
In this essay, I will tryto show thatKant'spracticalphilosophycanprovide
useful insights for enhancing sensitivity to the normative significance of
liberalprinciples.By exploring the claims of moral autonomyand political
republicanism,Kant develops a demanding and sophisticated concept of
human freedom and thus facilitates an understandingof liberalism whose
core is the unalienabledignity of every humanperson. According to Kant,
wheneverhumandignityis at stake,we areobligedto fight for its recognition
and protection. Indeed, far from being a bourgeois ideology of private
happiness, Kantianliberalism proves to be a fighting liberalism in that it
requires one to take on the challenges of moral self-responsibility and
republicancommitment.
526 POLITICALTHEORY/ August 1997

It is a truismthat, as an eighteenth-centuryphilosopher,Kantremainsin
many regards behind the currentdiscourses in political theory. Socialist
movements since the nineteenthcentury,as well as the recent debates on
feminismormulticulturalism,havecontributedimportantinsightsto political
philosophywhich go far beyondthe conceptualhorizonof eighteenth-century
Enlightenment.
It would thereforebe an absurdidea to simply "apply"the Kantianmodel
of a liberalrepublicto political problemsat the thresholdof the twenty-first
century.Yet, despite the fact that Kantin many regardsremainswithin the
boundariesof eighteenth-centuryphilosophy,he continuesto be an important
source of normative liberalism. By ignoring his critical insights, liberals
would thereforedeprive themselves of an opportunityto achieve a better
understandingof theirown ethical and political commitment.
My essay consists of three main sections. The first section is devoted to
the principlesof Kantianethics:moralautonomy,the categoricalimperative,
the notion of respect, and the dignity of all human beings. In the second
section, I outlineKant'slegal philosophy.I focus on the humanrightof equal
freedom and its concretizationthrough general laws which are legislated
within a republicof free citizens. The thirdsection deals with the political
strugglefor an orderof justice based on freedomand equality.

I. MORALAUTONOMY

1. Duty-BasedPhilosophyof Freedom

The fact thatliberalsarecommittedto implementingandprotectingrights


of freedom has frequentlyled to the assumptionthat liberalismis per se a
"rights-based"philosophy whose emphasis is on maximizing the scope of
individualchoice. Not only communitariancriticsof liberalism,like Michael
Sandel,1but also manyliberalssharethis understandingwhich, undoubtedly,
entails a degree of truth.As I will demonstratelater,Kant'slegal philosophy
may indeed be accuratelydescribedas focusing on individualrights. How-
ever, to do justice to the entire project of liberalism, especially Kantian
liberalism, one must not confine it to its legal aspect and its interest in
individualrights, because these rights themselves express a deeperconcern
for humandignity.This idea of humandignity,in turn,points to the capacity
of humans to act responsibly, a capacity which Kant tries to clarify by
analyzing the awareness of duty. From a Kantian perspective, rights of
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 527

freedom arethus not, in an abstractsense, priorto duty.On the contrary,it is


the awarenessof duty which opens up the way to a profoundunderstanding
of human freedom and to a genuinely normativeconcept of rights. Kant's
philosophyof freedomas a whole is thereforefirstandforemosta duty-based
philosophy.
In "WhatIs Enlightenment?,"one of his more popularpolitical essays,
Kantpoints out thatpeople have not only the rightbut, above all, the dutyto
strive for self-emancipation.This message comes quickly in the famous first
sentence: "Enlightenmentis man's emergencefrom his self-incurredimma-
turity."2The Germanterm Unmiindigkeit,improperlytranslatedas "imma-
turity,"has a moralor legal meaning:it refersto a personwho, like a minor,
lacks full moral or legal responsibility.The importantpoint is that this lack
of responsibilityis not causedby a naturalhandicapor by physicalimmaturity;
it is, as Kantemphasizes,"self-incurred." The Germantermselbstverschuldet
is clearerin thiscontextbecauseit againinvokesa moralconnotation,thatis, the
notion of guilt (Schuld). As guilt presupposesresponsibility,we face the
paradoxthatpeople areresponsiblefor theirnot being fully responsible.
The reasonfor thisparadoxis thatresponsibilityis sometimesexperienced
as a cumbersomeburdenof whichone wantsto ridoneself by replacingactive
responsibilitywith passive obedienceto an authority.Self-incurredimmatur-
ity is thus a self-imposed dependencyon the guidanceof anotherperson.In
fact,peoplearetoo ofteninclinedto surrendertheirfreedomandself-responsibility
to an authoritybecause"[i]tis so convenientto be immature!If I have a book
to have understandingin place of me, a spiritualadviserto have a conscience
for me, a doctor to judge my diet for me, and so on, I need not make any
efforts at all."3Immaturitycan almost become a person's "second nature,"
which means that he seems actually "incapablefor the time being of using
his own understanding,becausehe was neverallowed to makethe attempt."4
Since this immaturity is ultimately a self-imposed condition, caused
by "laziness and cowardice"5ratherthan by naturalobstacles, however, it
must be possible to work one's way out of this dependency and to achieve
a higher degree of self-responsibilitymore suitableto humannature.More-
over, we not only can but ought to undertakesuch an endeavor.According
to Kant, we owe it to ourselves to leave that state of immaturityin which
we would live like "domesticatedanimals"6ratherthanlike humanbeings.
To renounce enlightenment and self-emancipation would thus be tanta-
mount to a deliberate denial of our own humanity and to "violating and
trampling underfoot the sacred rights of mankind."7Striving for emanci-
pation, accordingly, turns out to be a basic duty which we are bound to
fulfill for the sake of human dignity.
528 POLITICALTHEORY/ August 1997

2. Autonomyof the Will

The struggle for freedom is itself a moral duty because freedom is the
necessary preconditionof moral action in general. It is an old insight that
moral action must be something more than mere passive compliance with
given standardsof behavior.For an actionto be morallyvaluable,it must be
groundedon the agent's innerfree will. In the traditionof ethical reflection,
the importanceof the innerwill of the acting individualhas, from early on,
been appreciatedas an essentialconditionof morality.ThomasAquinaswent
so far as to say thatin a conflict betweenanexternalmoralnormandthe inner
commandof the conscience, the lattershouldprevaileven in the case thatthe
norm were rightand the conscience erring.8
Kantgoes a decisive step fartherthanAquinasby rejectingthe idea of an
"erringconscience"as "anabsurdity."9 The traditionalconcept of an erring
conscience only halfheartedlyacknowledges the significance of the inner
will, since it confrontsthis will with somethingexternalwhich, nevertheless,
is believed to have moralsignificance.For Kant,by contrast,a normmerely
outside of the moral will would be without any moral meaning.Moreover,
every dogmatic "objectification"of moral normativity-for instance, in a
purportedly"objective"metaphysicalorder of values prior to, and inde-
pendentof, the will-results ultimatelyin a relativizationof the moralwill's
unconditionalclaim of validity.To emphasizethe will's significance as the
very source and center of all of morality,Kant professes: "Nothing in the
world-indeed nothingeven beyond the world-can possibly be conceived
which could be called good withoutqualificationexcept a good will."'0
By basing all of moralityon the person's free will, Kantbrings about a
revolution in ethics "as dramaticas, and comparableto, the 'Copernican
revolution'of his theoreticalphilosophy,"as Lewis White Beck points out."1
As Kant'sphilosophy of freedom is duty based, his philosophy of duty, in
turn,is freedom based in the most radicalsense, since it states thatthere are
no moral duties prior to, and outside of, the will. The will is not only the
preconditionfor carryingout given moral obligations;it is the origin of all
concrete moral obligations which come into being only throughthe moral
will. To put it metaphorically,the will is not merelyan "executiveorgan"but
also the "legislativeorgan"of humanmorality.It does not confine itself to
the deliberatefulfillment of given obligations;rather,it extends to the very
creationof moralnorms.The will is normgiving in thatit legislates its own
principlesandbindsitself to these self-given principles.12Preciselythis is the
meaning of Kant'sconcept of autonomy:"Thewill is thus not only subject
to the law but subject in such a way that it must be regarded also as
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 529

self-legislative and only for this reasonas being subjectto the law (of which
it can regarditself as the author).""3
However, by overcomingthe dogmatismof purportedlypreexisting"ob-
jective" values prior to the will, Kant by no means slips into bare moral
subjectivism.What he strives for is not to weaken but to deepen the under-
standingof moralityand to extend the awarenessof humanresponsibilityto
the point that it even includes the "legislative"creation of moral norms.
Although the moral will is ultimately prior to all concrete duties (in the
plural), it is not beyond the awarenessof duty as such (in the singular),an
awareness of an inner necessitationwhich urges the individualto develop
and make use of his or her moral capacity.The Kantianethics of the moral
will is thereforethe opposite of barevoluntarism.By locating the awareness
of duty and responsibilitywithin the moral will itself, Kant brings about a
new understandingof the will as an intrinsicallynormativehumancapacity.
The will (Wille) is not primarilythe faculty of choice (Willkiir),it is more
than that; namely, the faculty of binding oneself to self-given principles.14
Surely, without having a choice, that is, without the possibility of making
one's own independent decisions, the will would not be free. Genuine
freedom, however, extends beyond mere choice, which itself is only the
externalsine qua non of a free will. A personwho is reallyfree need not draw
lots to decide what to do. She "knows"what she has to do and, at the same
time, knows that what she will do is not a matterof mere arbitrarinessbut
ratherstems from an inwardlybindingconviction.
It cannotbe emphasizedenoughthatin the Kantianconcept of autonomy,
freedomandduty areinextricablyintertwinedin such a way thatthe radicali-
zation of the awarenessof freedomis synonymouswith a radicallydeepened
awarenessof duty.'sMoral self-legislationdoes not operateaccordingto the
model of an absolutisticrulerwho tailorslaws to his variousprivateinterests.
Instead,the norm-givingwill acts as a "legislativeorgan,"that is, as a fully
responsible legislation and, at the same time, as an "organ"bound by the
awarenessof duty as such. Moral autonomyis thereforenot tantamountto
moral "sovereignty,"as Sandel and other critics have alleged.16 Rather,the
moral will belongs to a finite humanbeing who often fails to live up to her
own self-legislated moralprinciples.Kantrepeatedlyemphasizesthe differ-
ence between a holy will-that is, a will which would indeed be beyond
imperatives-and the duty-boundmoral will of humans.17To illustratethe
peculiarquality of humanautonomyas opposed to moral "sovereignty,"he
invokes the idea of a moral realm in which the human being is both a
legislative authorof her own law and,nonetheless,a subjectto the morallaw.
He insists that"[w]e areindeed legislative membersof a moralrealm ... yet
530 POLITICALTHEORY/ August 1997

we are at the same time subjects in it, not sovereigns."18By revealingboth


the unalienablemoral vocation and the unavoidablefrailty of the human
being, the morallaw implicitlypointsto the idea of an absolute,divinejustice
which on earthcan never be achieved.'9

3. Kant's "Socratic"Wayof Philosophizing

How is moral autonomypossible? This is the basic questionunderlying


the Foundationsof the Metaphysicsof Morals and the Critiqueof Practical
Reason. In the wake of Rousseau,Kantis convincedthatunless the principle
of moralitycan be foundin the understandingof every person,moralityitself
would be impossible.20The startingpoint of ethicalreflectionmusttherefore
be the commonunderstandingof moralitycomparedto which moralphiloso-
phy, as an academic endeavor,proves only a second-orderphenomenon.
Respondingto the chargethat he in his Foundationsof the Metaphysicsof
Morals failed to providea new principleof morality,Kantfranklyadmitsthat
the categoricalimperative,which he had introducedas the criterionof moral
self-legislation, is not essentially novel but is "only a new formula."For, as
he goes on, pretendingto supply a completely new principle of morality
would be a presumptuousand absurdclaim: "Whowould want to introduce
a new principleof moralityand,as it were, be its inventor,as if the worldhad
hithertobeen ignorantof what duty is or had been thoroughlywrong about
it?"21The task of philosophy is thereforenot to "invent"morality;strictly
speaking,philosophycannoteven teachmorality.Its purposeis ratherto help
clarify the principlethat actuallyguides the common moral consciousness.
"Withoutin the least teachingcommon reason anythingnew, we need only
to draw its attentionto its own principle, in the mannerof Socrates, thus
showing thatneitherscience norphilosophyis neededin orderto know what
one has to do in orderto be honest and good, and even wise and virtuous."22
However,if moralityis independentof philosophy,as emphasizedby both
Rousseau and Kant, why should one bother about moral philosophy? Is
philosophy not a superfluousintellectualendeavor which, by questioning
moral practice,only jeopardizesthe innocent moralityof ordinarypeople?
WhereasRousseauactuallyends up by rejectingphilosophy,Kantholds that
philosophy is in fact needed because it can help to maintainthe principleof
moralityagainstthe temptationto put it aside or to dilute its strictness.With
an ironicalbarbagainstRousseau,he writes:"Innocenceis indeed a glorious
thing, but, on the otherhand,it is very sad thatit cannotwell maintainitself,
being easily led astray.For this reason,even wisdom-which consists more
in acting than in knowing-needs science, not to learnfrom it but to secure
/ KANT'S
Bielefeldt OFFREEDOM531
PHILOSOPHY

admission and permanenceto its precepts."23 The purposeof moralphiloso-


phy is thus to accomplish not the foundation but the self-clarificationof the
moral consciousness.24Such self-clarification is exactly the meaning of
Aufkldrung(which is improperly translatedas "enlightenment,"since it
connotes clarityratherthanlight).
Aufkldrungis the processof a criticalself-scrutiny.To accomplisha higher
degree of clarity and awareness about our inner disposition and about
the demands inherent in our moral consciousness, we have to employ
critical distinctions, such as the distinctionsbetween duty and inclination,
moralityand legality, categoricaland hypotheticalimperatives,and so on.25
Kant's way of philosophizing operates,to a great extent, as a method of
distinguishing.Not infrequently,his critical distinctionshave been misper-
ceived as abstractseparationsor antagonismsfollowing froma metaphysical
dualism.26For instance,the distinctionbetweenduty and inclinationhas led
to the false impression that he would despise naturalinclinations;and his
stress on the differencebetweenthe empiricalnatureandthe rationalcharac-
ter of the personhas given rise to the idea thathe would speculateaboutthe
"rationalbeing" as a species distinctfrom real humanbeings. Against such
misunderstandingsit seems necessaryto emphasizethat the criticaldistinc-
tions introducedby Kant are not intended to dissolve the complexity of
human life but, rather, are designed to illuminate the relation between
differentneeds and differentclaims of validity within humanexperience at
large, includingthe transempiricalpreconditionsof experience.
It is remarkablethat the distinctions which Kant invokes to clarify the
autonomy of moralityfirst and foremostdemonstratewhat moralityis not.
Morality is not simply a part of our naturalinclinations;it is not identical
with a good behaviorthatis in conformitywith the normsof society; it cannot
be found in the teleological structureof nature;and so on. Whatwe can thus
learnby undertakingthe Kantianscrutinyis thatthe innersourceof morality
seems to evaporateimmediatelywheneverwe tryto objectifyit. Forinstance,
when we reduce moral motives to naturalinclinations,we rendermorality
itself purely instrumentalin that it becomes a mere means to our personal
happiness; when we ground the moral principle on divine commands, we
debase moral actions to acts of blind obedience; and when we link moral
development to our intellectualor culturaleducation, we easily end up in
intellectualarrogance,which is the opposite of a moral disposition. Conse-
quently,it seems as though the unconditionalityinherentin the innermoral
"ought"precludesorforbidsobjectification,since anyreificationof the moral
"ought"would indeedbe tantamountto thedenialof its unconditionalvalidity
claim.
532 POLITICALTHEORY/ August 1997

If it is not possible to objectifythe innersource of morality,however,the


questionhow autonomyis possible does not find an answer.More precisely,
it cannot find an answerin scientific theory which operatesby objectifying
experience; hence the surprisingconclusion of Kant's Foundations of the
Metaphysicsof Moralsthatthe moral"ought"is ultimatelyincomprehensible
in that it is beyond the reach of theoreticalexplanation.The utmost result
criticalphilosophycan yield is, as Kantparadoxicallyputsit, "tocomprehend
this incomprehensibility."We can, in some sense, comprehendthe ultimate
incomprehensibilityof moralityif we take the unconditionalityof the moral
"ought"seriously,since unconditionalityalways implies irreducibility:what
is unconditionalcannotbe derivedfroma superiorprinciple,thatis, it cannot
be explained from an outside point of view.27The last sentence of the
Foundations thereforereads: "And so we do not indeed comprehendthe
practicalunconditionalnecessityof themoralimperative; yet we do comprehend
its incomprehensibility,which is all thatcan be fairlydemandedof a philoso-
phy which in its principlesstrives to reachthe limit of humanreason."28
As moral autonomyin the last analysis proves incomprehensible,we are
then once more confrontingthe question,"Whydo moralphilosophy?"Is it
not a waste of time and energy to deal with problems which in principle
cannot be solved? Kant's answer is that, althoughwe cannot theoretically
comprehendmoral autonomy,we can defend it. We have to defend it in
particularagainst those who, by claiming an all-encompassingtheoretical
insight into human nature, reduce moral actions to a merely empirical
causality and, consequently,deny the reality of humanfreedom.According
to Kant, philosophy can provide the intellectualmeans for rejectingsuch a
reductionistview by pointingto the intrinsiclimits of the scientific approach
to humanexperience.In his Critiqueof Pure Reason, he demonstratesthat
science, understoodas a way of structuringnaturalphenomenaby applying
the laws of empiricalcausality,cannot"grasp"the realityof freedom;it can
neitherprove norrefuteit.29Whatremains,Kantsays, is therefore"defense,
i.e., refutationof the objections of those who pretendto have seen more
deeply into the essence of things and thereforeboldly declarefreedomto be
impossible."30
Given that we cannot comprehendthe final source of moral autonomy,
however, how can we speak about it? Speaking about things which in
principle are beyond the reach of objectifyingtheoreticalscience and, nev-
ertheless, constitute an unalienableelement of the self-understandingof a
finite moralbeing requiresa certainkind of symbolic languagewhich Kant
calls "typic."31 What characterizesthis symbolic language is a peculiar"as
if" structure.We cannotavoid speakingaboutthingsas if we hada theoretical
knowledge about them even though they are ideas of reason ratherthan
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 533

possible objects of knowledge in the scientific sense. At times, Kantactually


speaks about the person's unconditionalmoral destination as if he could
regardand assess it from the standpointof divine providence.For instance,
he distinguishes between the moral will of humanbeings and the holy will
of a perfect being, and he invokes the idea of the "highestgood" in which
moralityand happinessfind a final reconciliationwhich on earthis impossi-
ble. Kant also compares the unconditionalcommandof morality with "an
apodicticallycertainfact, as it were."32These and similarsentences must be
understoodas metaphorsratherthandoctrinalassertions.They are symbolic
devices intended to illuminate the unconditionalpreconditionsof human
experience to "comprehendthe final incomprehensibility"of human exis-
tence. In otherwords, the Kantiantypic is an attemptto express the "uncon-
ditional"within the "conditional";that is, the self-understandingof a finite
moralbeing who is inevitablyconfrontedwith herfinitudewhenevershe tries
to objectify the unconditionalcommandof morality,a commandwhich can
be neitherfully comprehendednor actuallyfulfilled.
In the last analysis,philosophicalreflectionon the incomprehensibilityof
the humanconditionthereforeis a way of stimulatingwonderandawe of the
person's moral destiny, which itself goes beyond the reach of scientific
explanation.Wonderand awe mark both the beginning and the end of all
serious philosophizing. Thus, the conclusion in the Critique of Practical
Reason entailsthe philosopher'sfamousconfession which, in the most literal
sense, is Kant'sfinal message, as it is engravedon his tombstone:"Twothings
fill the mind with ever new and increasingwonderand awe, the more often
and the more steadily we reflect on them:the starryheavens above me and
the morallaw within me."33

4. Moral Law and Moral Judgment

Although moral autonomy is not amenable to theoretical explanation,


strictlyspeaking,it mustbe possible to demonstratehow it worksin practice.
This, in turn, entails two questions. The first question is how we can get
concrete normativeguidance;the second is how the moral law can become
an effective motive of our actions.
Autonomy of the will means thatmoralityis not derivablefrom external
purposesor effects of an action but, rather,lies exclusively within the inner
disposition of the will. As Kantemphasizes,"[T]hemoralworthof an action
does not lie in the effect which is expectedfromit or in anyprincipleof action
which has to borrowits motive from this expected effect.... Therefore,the
pre-eminentgood can consist only in the conceptionof the law in itself (which
534 POLITICALTHEORY/ August 1997

can be presentonly in a rationalbeing) so far as this conceptionand not the


hoped-for effect is the determiningground of the will."34In other words,
morality,if it is takenseriously,cannotbe consideredto be merely a means
of promotingexternalends butmust always be recognizedas an end in itself.
The categorical"ought"in our moralconsciousness thus commandsacting
morallysimplyfor the sake of morality.This is the formallaw of morality.
Insofaras the requirementto act morallyfor the sake of moralityremains
purelyformal,however,it fails to provideconcreteguidance.Whatthereforeis
needed is a mediatinglink between the formallaw of moralityand concrete
individual action. This mediatinglink can be found in the concept of the
maxim.A maximis definedby Kantas "thesubjectiveprincipleof volition."35
It is both subjectiveand a principle,as it refers to individualempiricalacts
and, at the same time, brings some orderinto the multiplicityof such acts.
Or, to approachthe same subject from a different angle, the maxim is a
principle but, at the same time, remainssubjective;that is, conditionedby
personalexperience,contingentinterests,and variouslife plans of the indi-
vidual. In the interpretationof OnoraO'Neill, maxims are "theprinciplesof
action of particularagents at particulartimes."36
What the categorical inner "ought"requires is that I bring about, and
always act in accordancewith, such maxims which I can will to hold as
strictlyuniversallaws. Kantwrites:"Thereis, therefore,only one categorical
imperative.It is: Act only accordingto thatmaxim by which you can at the
same time will that it should become a universal law."37I thus ought to
subordinatemy "subjective"principlesof volitionto an"objective"principle,
which itself is not outside the will but operates as the inner determining
normativeprincipleof the will. Kantis convincedthathis formulationof the
categoricalimperativefurnishesthe criterionby which people actuallyjudge
the moralworthof theirvariousmaxims.Althoughhis ethics is revolutionary
in thatit bases moralityentirelyon the free will, he claims to do nothingelse
but to clarify the principlethat has always been recognized as the guiding
criterionof moraljudgment.Moralityas a conscious endeavorhas always,
at least implicitly,referredto this categoricalimperative.Hence, Kantcon-
cludes:"Thuswithinthe moralknowledgeof commonhumanreasonwe have
attainedits principle.To be sure,commonhumanreasondoes not thinkof it
abstractlyin such a universalform,but it always has it in view anduses it as
the standardof its judgments."38
Since the categoricalimperativeoperatesas the innerdeterminingcrite-
rion of the moralwill, the requirementof universalizabilityof maxims is not
a merelytheoreticalexercise. It does not primarilyaim at logical consistency
but, above all, aims atpractical coherenceof mypersonal will guidedby the
unconditionalcommand inherentin my moral consciousness. The univer-
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 535

salizability requirementitself mirrors the unconditionalityof the moral


"ought" as it is implied in the categorical imperative. Accordingly, the
rationalitywithinthe universalizabilitytest of my maximsis neithera merely
instrumentalrationalitynor a scientific or theoreticalrationality;rather,it
appearsas a peculiar "practical"use of reason which can be found only in
the moral will. When Kant says that "will is nothing else than practical
reason,"39this means that the moral will entails its own use of reason, and
thatthis "practical"way of reasoningdiffersfromthe objectifyingtheoretical
use of reasonin thatit is intimatelylinkedto the self-legislative moralwill.40
What is furtherneeded to apply the morallaw to concretemaxims is the
faculty of judgmentwhich itself presupposespracticalexperience.Kantdoes
not say much aboutthe role of judgmentand experiencein the development
of moral norms. In the preface to the Foundations of the Metaphysics of
Morals, he alludes only incidentally to the necessity of judgment for the
moral law to be applicable in practice. He writes: "No doubt these laws
require a power of judgment sharpenedby experience, partly in order to
decide in what cases they apply and partlyto procurefor them an access to
man's will and an impetusto theirpractice."41
HannahArendt has pointed to the irony that Kant in his third Critique
undertakesa sophisticatedanalysis of the faculty of judgment, but more or
less fails to make use of these insightsin his moralandpoliticalphilosophy.42
As Ronald Beiner critically remarks,Kant seems even to debarjudgment
from the entire realm of practicalphilosophy,confining it, instead, to aes-
theticalquestionsof taste.43This leadsto problematicconsequences.At times
Kantconfuses the strictnessof the unconditionalmorallaw withthe inflexible
formulation of a concrete maxim which itself thus seems elevated to a
timeless dogmatictruth.
The most notoriousexample of this is Kant'sunconditionalban on lying,
which he believes should hold even in an extreme case, such as when
murderersseeking an innocentpersonare askingfor the hidingplace of their
potential victim.44This position, of course, is bizarreand has rightly been
criticized, if not ridiculed.Kant'smistake is thathe thinksthe uncondition-
ality of the morallaw must be immediatelymirroredin the equally uncondi-
tional validity of a concretemaxim.
Obviously, Kant's concern is always for the strictnessof the moral law
which, as he emphasizes,not only holds "in general"but requiresuniversal
application.Takingseriouslythe categoricalimperativerequiresthatI refrain
from the temptationto enter reservationsto the moral law for my personal
purposes.However,if I were to lie to save the life of an innocentperson,this
would not be an arbitraryexception to the ban on lying, since I can morally
will that every person should act in the same way whenever a comparable
536 POLITICALTHEORY/ August 1997

situationoccurs.45To lie to a potentialkiller to save innocenthumanlife is a


maxim which I can indeed will to hold universally. I can view it as a
"precedent"which shows thatmy previousmaxims-the maximneverto tell
a lie, whateverthe consequences-were too inflexible. Now, what is needed
is not to give up the banon lying butto modify it in such a way as to integrate
the "precedent"that whenever telling a lie is the only possibility to save
innocent life, I-and indeed everyone-should act accordingly.One can
easily imagineotherprecedentswhich, in turn,wouldmakenecessaryfurther
modifications to this more complex maxim. Thus, the coming about of
maxims can be understoodas an open process which requirespermanent
reflectionon how to integratenew possible or actualprecedentsinto my given
set of maxims.
What Kantfails to consideris the fact thatmaximsarenot only subjective
principlesbut historic principles.They come about and develop within the
life of the morallyjudging individual,dependingnot only on her personal
experiencebut on the ever-changingsocial contextin which moralactionand
reflection take place. In other words, moral maxims are inevitably condi-
tioned by time and space and by experienceand psychic developmentof the
individual,as well as by the social andculturalenvironmentat large. Hence,
a moralmaxim cannotrepresentthe morallaw once and for all. The uncon-
ditional "ought"of the categoricalimperativeonly conditionallytakes shape
throughmaxims which themselves must thereforeremainopen to criticism
andfurtherdevelopment.Succinctlyput,the unconditionalmorallaw under-
lies the entireprocess of generatingmaxims by employing all faculties of
judgmentto the service of the self-legislativemoralwill.
Seyla Benhabibis thereforeright in suggesting that the categoricalim-
perative should be supplementedby a more comprehensiveaccount of the
significanceof judgment.In particular,she calls for an explicit integrationof
communicativeaction, thatis, commonreflectionand exchange of opinions
for the developmentof moralmaxims.46At the same time, she rightlywarns
that judgment is not a purpose in itself but needs to be directedby moral
principles: "[O]nlyjudgment guided by the principles of universal moral
respect and reciprocity is 'good' moral judgment, in the sense of being
ethicallyright."47 In otherwords,forjudgmentto be morallyvaluable,it must
be employed by the moral will. Judgmentis the way of legislating moral
norms,by subjectingthe ever-changingmaxims of the individualto the test
of universalizability;yet, judgment is not the ultimate source of moral
self-legislation. The faculty of judgmentneeds to be put into the service of
the moralwill whose inherentlyunconditional"ought"is representedin the
rationalshape of the universalizabilityrequirementwhich itself both guides
and drives forwardthe developmentof moralmaxims.
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 537

5. Moral Motivation

Moral autonomy presupposes both an autonomousnormativecriterion


and an autonomousnormativemotivation.While the normativecriterioncan
be identified as the requirementof universalizabilityof maxims, the moral
motivationis addressedby Kantin his conceptof respect.The importanceof
the conceptof respectfor a comprehensiveunderstandingof moralautonomy
has largely been neglected.48It is more or less ignored especially in those
"neo-Kantian"treatiseswhich, like the Rawlsian Theoryof Justice, attempt
to redefinemoral autonomyin termsof a merely theoreticalthoughtexperi-
ment and, as a result, dissolve the intrinsic connection between practical
reason and the moralwill.49
According to Kant, the will cannot be called autonomousunless it is
ultimately independentof empirical sanctions. If it were to depend, for
instance,on the expectationof rewardor the fear of punishment,it would be
heteronomousratherthanautonomous,becausein such a case moralbehavior
would only be a meansto satisfyingempiricalinterestsandneeds. Kantcites
the example of a merchantwho complies with the rules of honesty,since he
knows that by cheating he would jeopardize his good reputationand thus
finally underminehis own business.Althoughhe certainlyacts in accordance
with duty, he does not actfrom duty, as his correctbehaviordepends on a
nonmoralmotive, thatis, the motive to maintainandpromotehis business.50
Now, let us assume thatthe merchant'shonest behavioris firmly based on a
religious faith and that it is motivatedby hope for divine rewardor by fear
of divine punishmentin the afterlife. In traditionalethics, such a religious
motive was, for the most part, regardedto be nobler than the economic
motive. From Kant's point of view, however, the difference between these
two motives does not count, because in either case moral action is reduced
to a purelyinstrumentalstatus.The same assessmentwould even hold in the
case that the merchant would perform his duties without expecting any
rewardbut would act simply for the sake of his own psychological"identity."
Insofaras he renderedmoralityan instrumentto his psychologicalwell-being,
his will, strictlyspeaking,would again be heteronomous,not autonomous.
Kant's ethics of autonomydiffers from traditionalethics in that it does
away with the distinctionbetween "lower"and "higher"empiricalinterests.
In the light of the idea of autonomy,the differencebetween most primitive
andmost sophisticatedempiricalinterestsno longercounts.5'Good behavior
may be motivatedby fear of economic bankruptcy,by expectationof divine
rewardin the afterlife, or by an interestin cultivatingone's psychological
identity.In any case, as long as the will depends on empiricalsanctions or
rewards, however subtle they may be, it remains heteronomous.In other
538 POLITICALTHEORY/ August 1997

words,for moralautonomyto be conceivable,we have to assumea genuinely


moral motivation which in principle differs from all empirical motives.
According to Kant,this moralmotivationcan be identifiedas the feeling of
respect. (It should be noted in passing that the Germanterm Achtung is
stronger than its English translationas "respect"because it also means
"attention,"which is a more active attitudethan mere respect. H. J. Paton
translatesAchtung as "reverence";52 CharlesTaylor argues that it also in-
cludes the connotationof "awe."53)
Originatingfromthe moralwill itself, respectis not an ordinaryemotion;
it does not belong to the realmof empiricalpsychology.It is thereforeclear
thatthe existence of such a transempiricalmoralmotive cannotbe provenin
a scientific way. Wheneverwe objectify our motives scientifically,we end
up discoveringnothingbut empiricaldrives. And yet we can become aware
of the existence of a genuinelymoralincentive,becauserespectexercises an
effect on the emotional life of the individual insofar as it influences our
self-esteem. This influence is, first and foremost, a negative one in that it
strikesdown self-deceit,pride,andarrogance.As Kantrepeatedlyemphasizes,
respect always includes a humiliatingaspect: "If anythingchecks our self-
conceit in our own judgment,it humiliates.Therefore,the morallaw inevi-
tably humblesevery man when he comparesthe sensuouspropensityof his
naturewith the law."54At the same time, respectalso has an elevating effect
on us, since it makes us aware of our moraldestiny and can thus stimulate
the feeling of "wonderand awe" that Kant describes in the conclusion of
Critiqueof Practical Reason.
Respectthusturnsout to be an ambivalentfeeling, whichpointsto the fact
that it is somethingbeyond all empiricalsanctions.It is neitherpleasurenor
displeasure,or, moreprecisely,it is above bothpleasureanddispleasure.On
one hand,it is "sofarfrombeinga feeling of pleasurethatone only reluctantly
gives way to it when it is respectfor a man."55On the otherhand,thereis "so
little displeasure in it that, when once we renounce our self-conceit and
respect has establishedits practicalinfluence, we cannot ever satisfy our-
selves in contemplatingthe majestyof this law, and the soul believes itself
to be elevated in proportionas it sees the holy law as elevatedover it and its
frailnature."56 The ambivalenteffects of respectagainrevealhumanmorality
as the vocation of a finite being who will never be able to fulfill the
requirement of the moral law once and for all. Thus, human morality
inevitably is-and always will be-a moralityin conflict. The ambivalence
withinthe feeling of respectmirrorsthis conflictednatureof humanmorality
in general.
Kantianethics has often been chargedwith "a reductionisttreatmentof
the emotional and affective bases of moraljudgment and conduct,"to cite
Bielefeldt/ KANT'S PHILOSOPHYOF FREEDOM 539

Benhabib.57It is certainlytruethatKanthas not developed a comprehensive


moralpsychology. Moralpsychology is not a topic he is primarilyinterested
in. Rather,what he seeks is an understandingof the transempiricalprecondi-
tions of all moralpsychology; that is, a transempiricalmoral motivationby
which the unconditionalvalidityclaims of moralityarenot reducedto merely
empirical drives. What the factual motive of this or that action is, though,
remains an open question. Serious self-scrutiny makes us aware that we
cannot even be sure aboutthe actualmotives of our own purportedlymoral
behavior-let alone aboutthe motives behindthe behaviorof otherpeople.
The awarenessof this uncertaintyis itself an importantphilosophicalinsight
becauseit can help to fightprideandarrogance.At the same time, the Kantian
analysis of the emotional impact of moral "respect"facilitates a defense of
the possibility of genuinelymoralmotivationand hence the very possibility
of moralautonomyin general.

6. HumanDignity

It is an old idea traceableto the Bible and to ancient Greek philosophy


that human dignity rests on the person's ability to act responsibly. By
extending the awareness of moral responsibility,Kant, at the same time,
deepens the awarenessof humandignity. In the Foundationsof the Meta-
physics of Morals, he defines humandignityas an end in itself; thatis, an end
beyond every marketprice in thatit cannotbe replacedby an equivalent:"In
the realm of ends everythinghas eithera price or a dignity.Whateverhas a
price can be replacedby somethingelse as its equivalent;on the otherhand,
whatever is above all price, and thereforeadmits of no equivalent, has a
dignity."58
Given thatthe moralwill is the sourceof all concretemoralnorms,values,
and obligationswhatsoever,respectfor a person'smoralautonomymust be
something more than a particularmoral requirementbeside other require-
ments. It is indeed tantamountto respectingthe moral law itself. The due
respect for human dignity thus occupies the same rank as the principle of
moral self-legislation; that is, the categoricalimperativeitself. Hence, it is
the one and only categoricalimperativewhich can-more precisely,must-
also be formulatedin the following way: "Act so that you treat humanity,
whetherin your own personor in thatof another,always as an end and never
as a means only."59
In Kant'sethics, moralautonomyand humandignity inextricablybelong
togetherin such a way as to formone and the same normativeidea. To reflect
on "the moral law within me" is to stimulate"wonderand awe" for human
540 POLITICALTHEORY/ August 1997

dignity.60Since human dignity, in turn, rests on the person's destiny as a


morallyautonomoussubjectratherthanon particularqualitiesof this or that
individual, the same respect is due to every human being. Whereas in
premodernethical thoughtthe concept of dignity was often mixed with the
concept of honor,a concept linked to the idea of different"ranks"between
people of differentorigins or estates, the modern liberal understandingof
dignity refersto all humanbeings on an equalmeasure.61 The idea of human
dignity is necessarily universalin that it equally includes all humanbeings.
Given the importanceof the professionof humandignity,Kantianuniver-
salism by no means indicatesa lack of ethical substance.It is not "abstract"
in the sense of being detachedfrom the ethical life of real humanbeings, as
many critics from Hegel onwardhave alleged;62rather,it refers to the very
sourceof all ethicallife. By exploringthe self-legislativemoralwill, Kantian
ethics does not replaceethical substancewith a merelyproceduralmorality;
instead, it rendersthis substancetransparenttowardits underlyingsource:
the dignity of the person as a morally responsible agent, a dignity which
categoricallydemandsrespectand recognition.This is the strongnormative
claim of Kantianuniversalism.

II. THERIGHTOF EQUALFREEDOM

1. The Conceptof Rightand Its Moral Basis

Respectfor humandignityalso is the clue to understandingKant'sconcept


of Recht,a termwhich in Germanhas a broaderconnotationthanits English
translationas "right,"since Recht encompasses both the individual legal
entitlementand the entireorderof legaljustice. Supposethathumandignity
is violatedwhenevera person'sequalfreedomis infringedupon,for instance,
by anuncontrolledpoweror anarchisticviolence. Underthesecircumstances,
people are duty bound to establish an order of legal justice by which
everyone'srightto equal freedomcan be guaranteed.Such an orderof right,
Kant says, is necessary whenever people live together in such a way that
"theiractions,as facts, canhave (director indirect)influenceon eachother."63
Given thatthe empiricalcircumstancesof humancoexistence always imply
the danger of producing relationships of unilateral dependency, that is,
oppressionor discrimination,people living togetheron a sharedterritoryare
obliged to set up an orderof legaljustice. Kant'sphilosophyof rightthushas
a dual basis: whereasits normativejustificationrefersto the equaldignity of
every humanbeing as a morallyautonomoussubject,thefactual necessity of
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 541

an orderof rightrestson the empiricalcircumstancesof humanbeings in their


social coexistence.
The supremeprincipleof legal orderis freedom.The right of freedom is
not only a particularright beside otherrights-as it is the case, for instance,
in Locke's triadof "life,liberty,andproperty."Rather,it formsthe underlying
principle of the entireorderof right.Representingthe constitutivenormative
principleof legal orderin general,freedomplays the centralrole within the
conceptualframeworkof right,a role comparableto thatoccupied by moral
autonomywithin the conceptualframeworkof morality.To emphasizethis,
Kantqualifies freedomas the only "birthright" of every humanbeing. Under
the headline, "There Is Only One Innate Right," he claims: "Freedom
(independencefrombeing constrainedby another'schoice), insofaras it can
coexist with the freedomof every otherin accordancewith a generallaw, is
the only originalrightbelonging to every man by virtueof his humanity."64
Freedomcannotoperateas the universalprincipleof legal orderunless it
is connectedwith the principleof equality.More precisely,equalityis not an
independentprinciple beside the principle of freedom, but is in fact the
precondition to the recognition of everyone's freedom. The "only innate
right"of freedomthus proves synonymouswith the "innateright"of equal-
ity.65Freedomand equalitydo not constitutetwo differentprincipleswhich
need to be balancedagainsteach other;rather,they form two interconnected
aspects of one and the same principle.This interconnectionis crucialfor an
understandingof Kant'sphilosophyof right.In oppositionto a feudal order
in which freedomused to be reservedfor a privilegedminority,the Kantian
concept of freedom is from the outset linked to equality,therebyfurnishing
the one and only "birthright" of every person.
Since a rightfulorderguaranteeingequalfreedomfor everyoneis a way of
publicly recognizing respect for every person's equal dignity as a morally
autonomous subject, moral autonomyand the right of freedom ultimately
belong together.This connection,however,is only an indirectone. As Kant
emphasizes, there is an essential difference between morality and right, a
difference that must always be upheld. Unlike morality,which in principle
cannotbe enforced,the conceptof rightis inherentlylinkedto enforceability.
Accordingto Kant'sdefinition,"Rightis connectedwith an authorizationto
use coercion."66Coercion,he furtherexplains,can be legitimatelyemployed
as "hinderingof a hindranceto freedom,"67that is, as a way of overcoming
or preventinginjusticeand thus protectingan orderof freedom.
To clarify the differencebetween moralityand right systematically,Kant
distinguishes between a free "will" (Wille) and a free "choice" (Willkiir).
Legal freedomrefers to freedom of "choice"but can never directly address
the inner self-legislative "will." Kant thereforedraws a clear line between
542 POLITICAL
THEORY
/ August1997

morality and right with regardto their differentmotives. Whereasthe only


genuinely moral motive is respect, a feeling that in principle stands above
physical or psychological coercion, obedienceto the orderof right can also
be enforcedby employingmeansof threatandcoercion.Thus, Kantdefines:
"Alllawgivingcan thereforebe distinguishedwithrespectto the incentive....
That lawgiving which makes an action a duty and also makes this duty the
incentive is ethical. But thatlawgiving which does not includethe incentive
of duty in the law andso admitsan incentiveotherthanthe Ideaof duty itself
is juridical."68
Kant'scleardistinctionbetweenthese two kinds of normativelegislation,
however, is not an abstractseparation.It is motivatedby a concern for the
integrityof moral autonomywhich must be respectedas remainingoutside
the reach of legal enforceability,a requirementwhich follows from the idea
of human dignity itself. Kant thereforeexplicitly limits the scope of legal
coercionwhich, he says, shouldbe confinedto structuringthe externalsphere
of action in such a way as to yield a maximumof equal freedom of choice
for every memberof the legal order.Legal coercion, however, must never
extend to the inner legislation of the will. Kant categorically rejects the
possibility that legal force can be used to promote a moral disposition of
the individual.His clearrejectionof all sortsof politicalguardianship over the
morality of the citizens amounts to a radical break with the Aristotelian
traditionof politicalphilosophywhich,for morethan2,000 years,hadalways
emphasizedthatpromotingthe virtueof the citizensis the most noblepurpose
of a polity. It is not mere skepticism but, above all, the insight into moral
autonomythat makes Kantreject this Aristotelianproject.He is convinced
thatby blurringthe line between ethical andjuridicallegislation,one would
both deny respect for humandignity and dissolve the legal structureof the
political order.Hence, his strict warning:"But woe to the legislator who
wishes to establishthroughforce a polity directedto ethical ends! For in so
doing he would not merely achieve the very opposite of an ethicalpolity but
also underminehis political state and make it insecure."69
Yet, the idea of human dignity not only has a negative impact on the
understandingof right in thatit criticallylimits the scope of legal coercion;
it also provides the frame of referencefor a positive justification of legal
order.Although legally enforceablefreedom of "choice"cannot reach the
autonomyof the innerself-legislative"will,"the legal orderof justice can in
fact be consideredan indirectrecognitionof autonomy.Thatis, to guarantee
legal freedom on the basis of equality amountsto a symbolic expressionof
the equal dignity of all humanbeings as morallyautonomoussubjects.The
inner freedom of the will, which itself can never be an object of legal
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 543

protection, receives indirect legal recognition in an order of right. While


belonging to differentnormativeorders,moral autonomyand legally guar-
anteed freedom of choice are thus interconnectedin such a way as to
constitutea complex normativewhole, as GerhardLuf points out.70
As rights of freedom express due respect for the unalienabledignity of
every person,moralautonomyanda just legal orderareessentially intercon-
nected, althoughnever identical. Such an orderof right,while being distinct
from the order of morality,is justified from an ethical point of view. It is
justified not only despite this distinctionof right from moralitybut, rather,
because of this distinction,which itself ought to be strictlypreservedfor the
sake of morality itself. The connection between ethics on one hand and
jurisprudenceon the otheris a connectionbetweendifferentnormativeorders
of freedom,the differenceof which mustalways be upheld.At the same time,
these different orders belong together with regardto the dignity of every
personas a morallyautonomoussubject.In otherwords,althoughenforceable
rights of freedomcan only guaranteefree choice, these rightsthemselves are
not a matterof mere"choice,"as it appearsin Rawls's Theoryof Justice.They
are indeed "unalienable,"as the American Declaration of Independence
rightly states. Kanteven holds them to be "God'smost sacredinstitutionon
earth."71

2. TheRight of Freedomand Its Concretizationin GeneralLaws

The fact thatKantconcentrateson the "oneinnateright"of freedomrather


than on a comprehensivelist of rights indicates the significance of legal
freedom as the underlyingprincipleof the entire orderof right.To exercise
an effect on humansociety, however,this abstractright of freedommust be
spelled out in a varietyof concretelaws which themselves must be brought
about throughpolitical legislation. Since these laws serve as the mediating
link between the formalright of freedomon one hand and concretesocietal
practiceon the other,they have a role comparableto that of maxims in the
realm of morality.Whereas maxims bridge the gap between the universal
principle of morality and the particularlifeworld of the moral actor, laws
mediate between the universalprincipleof right and the social and political
lifeworld of a given society.72
Kant, however, does not sufficiently consider the particularsocietal cir-
cumstancesfrom which laws arederivedandto which they areto be applied.
Thus,whatI criticallyremarkedearlierwithregardto Kant'smoralphilosophy
holds also for his philosophyof right:he largelyfails to take into accountthe
544 POLITICALTHEORY/ August 1997

role of judgment and experience for the development of concrete norms.


Insteadof conceiving the coming aboutof moralor legal normsin terms of
an open historicprocess, Kantholds normsto be directlydeduciblefrom the
supreme principles of morality and right, respectively. As a result, his
philosophy of right-like his ethics-at times takes on a certaindogmatic
shape. An example of this dogmatictendencyis his categoricalrejectionof
any possibility of a right to resistance, a rejection which he thinks can be
deducedimmediatelyfrom the principleof right.73
In English editions of Kant, this deductivistfeatureof his philosophy is
often furtherreinforced.One source of potential confusion is the German
adjectiveallgemein, which is ambiguousbecauseit can meaneither"univer-
sal"or "general."In Englisheditions,the termallgemeinis mostly translated
as "universal."This translation,however,seems at times questionable.This
is the case, for instance,with regardto the concept of law in the context of
Kant'sphilosophyof right.
Kantdemandsthatthe laws throughwhich the supremeprincipleof right
takesshapebe strictlyallgemein.In hereditionof theMetaphysicsof Morals,
MaryGregorconsistentlytranslatesallgemeineGesetzeas "universallaws."
Consequently,in her translation,Kant's definition of the principle of right
reads as follows: "Any action is right if it can coexist with everyone's
freedom in accordancewith a universal law."74This translation,however,
seems problematicto me, becauseto define the "universal"principleof right
with referenceto a "universal"law amountsto an empty tautology.I would
thereforesuggest that the adjectiveallgemein be translateddifferentlywith
regardto the principleof righton one handandto the variouslegal normsin
which this principleis spelled out on the other.This differencein translation
can be justified with reference to the observationthat in Kant's texts the
allgemeine principle of right always occurs in the singular and with a
determinatearticle:it is the one and only supremeprincipleof legal justice,
and hence strictly universal. By contrast,the laws by means of which the
universalprincipletakes shape occur eitherin the pluralor with an indeter-
minate article.These laws thereforecannot be in the same sense allgemein
as the principleof right.
Further,allgemeine Gesetze must be applied to an empirical society of
humanswhose "actions,as facts, can have (direct or indirect)influence on
each other,"75as Kant points out. Given that these laws take shape in a
particularsociety they cannot, strictly speaking, be "universal."Finally,
concretelegal normsstemfromthe volontegene'raleof thepeople.According
to Kant, laws originatefrom the people's political self-legislation, in con-
formitywith the idea of the "generalwill," thatis, a hypotheticalconsensus
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 545

of a particularpeopleconsistingof free andequalcitizens.Laws whichcomply


with the "generalwill" of a particularpeople, however,shouldin my opinion
be called "general,"whereasthe qualityof "universality"shouldbe reserved
for the one and only underlyingprinciplesof all generallaws: the universal
rightof equalfreedom.ForthesereasonsI preferthe translationof allgemeine
Gesetze as "general laws."76

3. The "GeneralWill"as the Principle


of Political Self-Legislation

By declaringthevolontegnenraleto be theprincipleof politicalself-legislation,


Kantonce againdrawson Rousseau.77Accordingto bothRousseauandKant,
the volontegenerale requiresthatpeoplebringaboutlegal normsby mutually
recognizing their equal freedom as citizens. Thus, it is through political
legislation boundby the idea of the volontegenerale thatthe universalright
of freedom and equalitytakes shape within a particularsociety.
KantclearlydiffersfromRousseau,however,by emphasizingthatpolitical
self-legislation can proceed only indirectly, that is, by means of repre-
sentation.Unlike moralself-legislation,which must be accomplishedimme-
diately by the moralwill of the acting individual,political legislationcannot
be expected to originatedirectlyand unanimouslyfromthe people itself and
thus calls for representation.78 Representationrequiresthat laws be enacted
in such a way as to accordat least with a hypotheticalself-legislation of the
people. Thus, Kantexplains representationof the generalwill as an indirect
political implementationof a normativeidea: "Itis in fact merely an idea of
reason, which nonethelesshas undoubtedpracticalreality;for it can oblige
every legislator to frame his laws in such a way that they could have been
producedby the unitedwill of a whole nation,and to regardeach subject,in
so far as he can claim citizenship,as if he had consentedwithin the general
will. This is the test of the rightfulnessof every public law."79
For both Rousseau and Kantthe hallmarkof a law that accordswith the
volontegeneraleis its strict,abstractgenerality.80The unitedwill of the people
can yield only abstractlegal normsaddressedto all subjectsof the legal order
on an equal measure.The underlyingidea is the same as in John Rawls's
"originalposition," which requirespeople to decide on basic principles of
politicaljustice behinda "veil of ignorance";thatis, in a conscious disregard
of those particularcircumstanceswhich, if they were taken into account in
the decision aboutthe principles,could lead to a preferentialtreatmentof, or
a discriminationagainst,some membersof society.81Similarly,the abstract-
546 POLITICALTHEORY/ August 1997

ness of laws, accordingto Kant,is intendedto precludefrom the outset all


kinds of preferentialor discriminatorytreatmentand to guarantee strict
equalityof rights.To abideby the idea of the "generalwill, " legal rules must
thereforebe formulatedas abstract"generallaws," applyingequally to all
membersof society.
It is clear thatgenerallaws need to be furtherconcretizedand appliedto
particularcircumstances.Takingthe particularsituationseriouslyconstitutes
an importantaspect of political and legal justice. The necessaryconcretiza-
tion of normstowardparticularcircumstances,however,must not happenin
the process of legislationitself; rather,it must be accomplishedin a separate
procedure,thatis, withinthe administrationorwithinthejudiciary.Following
Rousseau,82Kantdistinguishesbetween the concept of law and the concept
of decree: whereasa law should be "general"in thatit addressesall citizens
of the commonwealthon an equal measure,the applicationof the law to
particularcircumstancesshould be broughtabout in "particular" decrees.83
This distinctionis crucialfor Kantbecausethe confusion of laws and decrees
would eventuallylead to a particularizationof the entire legislation,that is,
a dissolution of generallaws and, as a result,a violation of the principleof
equal freedom. Kant thereforeinsists that the distinctionbetween law and
decree be institutionalizedin terms of a separationof powers. The govern-
ment which wields executive power should carry out general laws which
themselves arelegislatedby parliament.A republicanconstitutionis charac-
terized by the subordinationof the government to general laws which
themselves are broughtabout independentlyof governmentalinterference.
Separationof powers thus marksthe differencebetween republicanismand
despotism. Accordingto Kant'sdefinition,"Republicanismis that political
principlewhereby the executive power (the government)is separatedfrom
the legislative power.Despotismprevailsin a state if the laws are made and
arbitrarilyexecuted by one and the same power."84
Kantis not the first political philosopherto have arguedfor a separation
of powers, a principle that can indeed be traced far back to premodern
political thought.What is new in his argument,however,is thathe justifies
the requirementof separationof powerwithreferenceto the volonte'gene'rale.
Separationof powers thus does not appearto be an externalconstrainton
political legislation.It is not a meansof "taming"politics by framingit with
a certain set of institutionswhich themselves remain outside of political
debate. Instead,it is the basic principleof republicanself-legislation itself
that demandsa separationof powers, because only by drawinga clear line
between "general"normson one handand "particular" applicationsof these
norms on the other can the volonte generale be protectedagainstthe ever-
lurkingdangerof getting lost in the problemsof everydaypower politics. In
Bielefeldt/ KANT'SPHILOSOPHY
OFFREEDOM 547

other words, the requirementof distinguishing and separating different


political powers is not an externalimpositionon a republicof self-legislating
citizens; instead, it makes up the inner quality of a polity that proceeds in
accordancewith the underlyingprincipleof republicanself-legislation.

III. POLITICALSTRUGGLEFOR
A REPUBLICANORDEROF RIGHT

1. Signs of Hope in HumanHistory

As I mentioned in my introductoryremarks, Kantian liberalism is a


fighting liberalism. It fights, above all, against one's own laziness and
cowardiceto achieve a higherdegreeof personalresponsibility.It also fights
for bringing about an order of political justice in which everyone's equal
dignity receives public recognitionin termsof equal rights of freedom.
The way of how to achievesuch an orderof rightlies at the centerof Kant's
philosophy of history.On one hand,he emphasizesthathistory in principle
is open: in the face of the unpredictabilityof humanhistory,humanbeings
cannot replace their political responsibilityby awaiting a kind of "natural
unfolding"of historicprogressor by applyinga purportedknowledge of the
course of historyin a technocraticway. On the otherhand,Kanttriesto show
thattherearesome tendenciesin humanhistorythatgive hope at least for the
possibility of establishinga republicanorderof rights.Withoutconcretesigns
of hope for such a possibility,the task to fight for politicaljustice would be
an absurddemand.
Kantactuallysees some signs of hope for political improvements.Above
all, he stresses the fact that "sheer necessity" urges people to overcome
anarchisticviolence and to set up an orderof peace, both at the nationaland
the internationallevel: "Man, who is otherwise so enamouredwith unre-
strainedfreedom,is forcedto enterthis stateof restrictionby sheernecessity.
And this is indeedthe most stringentof all formsof necessity,for it is imposed
by men upon themselves, in that their inclinationsmake it impossible for
them to exist side by side for long in a state of wild freedom."85
When Kantin his "PerpetualPeace"even speaksabouta "Guaranteeof a
PerpetualPeace,"86however,he means a "guarantee"only in a metaphorical
sense. It is a guaranteewhich by no means reduces the burdenof human
responsibility;instead, it draws on some naturaltendencies, like the "spirit
of commerce,"87with regardto which the strugglefor political progresscan
be shown to be a reasonabletask.Hence, the conclusion:"Inthis way, nature
548 POLITICALTHEORY/ August 1997

guaranteesperpetualpeace by the actualmechanismof humaninclinations.


And while the likelihoodof its being attainedis not sufficientto enable us to
prophesythe futuretheoretically,it is enoughfor practicalpurposes.It makes
it our duty to work our way towardsthis goal, which is more than an empty
chimera."88

2. From the State of Natureto Civil Society

In keeping with the traditionof social contractphilosophy,Kant distin-


guishes betweena "stateof nature"anda "stateof civil society,"a distinction
thathas become prominentsince ThomasHobbes. Kant'sconceptionof the
state of natureseems, at first glance, to come quite close to the Hobbesian
state of natureto which it has in fact often been equated.89Because of the
lack of governmentandpublic authority,people live in constantfear of each
other and are thereforetemptedto attackone anotherviolently to prevent
being attackedthemselves.The state of nature,Kantsays, representsessen-
tially "a state devoid ofjustice."90
At closer scrutiny,however,the Kantianconceptof the stateof natureturns
out to differin an importantaspectfromthe Hobbesianfeature.Accordingto
Kant, even in the state of naturepeople possess legal claims against one
another.The fighting in this anarchisticsituationis thereforenot merely a
struggle for sheer survival but a strugglefor right.91Although the state of
natureis defined by the lack of public right,people can claim private rights,
such as rights of property or private contracts. For these claims to be
legitimate,they must be based on the universalprincipleof right,thatis, the
principleof mutualrecognitionof everyone's equal freedomof choice. It is
with regardto this universalprincipleof rightthatKantpoints out: "WhenI
declare (by word or deed), I will that something external is to be mine,
I thereby declarethateveryoneelse is underobligationto refrainfromusing
that object of my choice.... This claim involves, however,acknowledging
thatI in turnamunderobligationto everyoneotherto refrainfromusing what
is externallyhis."92
Generallyspeaking,the principleof right-that is, the demandthatpeople
mutuallyrecognizetheirlegal claims on the basis of equalityand freedom-
also holds in the state of nature. The problem with the state of nature,
however, is that the mutualrecognitionof everyone's legal claims does not
manifestitselfpublicly.It is thislackof publicexpressionandacknowledgment
of rightswhich easily leads to mutualdistrustand violence. And yet, insofar
as claims in the stateof naturehave the normativequalityof rights,they point
to a futureorderof publicjustice and thus to the necessity of bringingabout
Bielefeldt
/ KANT'S
PHILOSOPHY
OFFREEDOM549

a civil society in which legal claims can receive public recognitionthrough


political legislation. From a systematic perspective,public legislation in a
civil constitutionthus proves to be the normativepreconditionfor the very
possibility of claiming privaterights in the state of nature,a precondition
which within the state of natureis always implicitlyanticipated whenever
legal claims are made. Hence, to make such claims implies recognizingthe
obligationto establisha publicconstitution;this obligationis not only a moral
butalso a legal one. "Thereforesomethingexternalcanbe originallyacquired
only in conformitywith the Idea of a civil condition,that is, with a view to
it and to its being brought about, but prior to its realization. . . . Hence
original acquisition can be only provisional. Conclusive acquisition takes
place only in the civil condition."93
If people in the stateof naturecan claim rightsagainsteach otheronly by
anticipatinga civil society, however, they have to encountereach other as
potentialcitizensratherthanas mereprivateowners.Kant'spoliticalphilosophy
differs remarkablyfrom an ideology of "possessive individualism"94 in that
it presupposesan idea of citizenship even in the state of nature.This also
holds in the case of violent clashes. As Kantemphasizes,employing means
of physical coercion to defend one's rights in the state of nature is not
permissibleunless the use of force goes along with the intentionof abandon-
ing the state of natureand enteringinto a civil constitutionof public right.
That is, by fighting against the other,one, at the same time, ought to fight
together with the other for establishing a common constitutionalorder of
right:"If it must be possible, in termsof rights,to have an externalobject as
one's own, the subjectmustalso be permittedto constraineveryoneelse with
whom he comes into conflict... to enteralong with him into a civil consti-
tution."95
If the employment of means of coercion in the state of naturecan be
permissibleonly as an anticipationof public authority,then the use of force
cannot be unconstrained.Unlike Hobbes, who in the state of natureallows
the summoningof all availablemeans of power and violence, Kantactually
draws some limits to the use of force in the state of nature.These limits can
be foundin the "PreliminaryArticlesof a PerpetualPeace"(in the firstsection
of the "PerpetualPeace").96Althoughthese articlesreferto the stateof nature
betweenstates, thatis, to the domainof foreignpolicy, they can, in principle,
be translatedalso to the anarchic situation of a state of nature between
individuals.Kant's"PreliminaryArticlesof a PerpetualPeace"entail,among
otherrequirements,a strictbanon "theemploymentof assassins(percutores)
or poisoners (venefici), breach of agreement,"and so on.97Such means of
warfarecan never be permittedin the struggle for right, since they would
destroythe verypossibilityof a civil constitutionby makingthe development
550 POLITICALTHEORY/ August 1997

of mutual confidence betweenfuture citizens impossible. In other words,


even in the state of naturethe universalprincipleof right has a normative
impact in that it limits the use of violence to conditions which, at the very
least, facilitatesome stepstowarda systematicmutualconnectionof physical
coercionandthe principleof right.As soon as this connectionactuallyworks,
the state of civil society will be achieved.

3. From Civil Society to a LiberalRepublic

In the languageof early modem political philosophy,Kantanalyzes the


transitionfrom the state of natureto a civil constitutionin terms of a social
contract. This social contract refers not to the historic origin but to the
normativeorigin of the state.Kantis soberenoughto assumethatthe historic
origin of the state most likely is an act of violence. He writes, "[T]he only
conceivable way of executing the original idea [of a social contract] in
practice, andhence of inauguratinga stateof right,is byforce. On its coercive
authority,public right will subsequently be based."98This monopoly of
coercive power, however, is only the empiricalelement of a rightfulorder.
For this order to be legitimate, it must be grounded in the hypothetical
consensus of people who recognizeeach otheras free and equal citizens.
This founding social contractis of a peculiarnature.It is based not on
interests which those concluding the contractactually have but, rather,on
intereststhey ought to have. Unlike an ordinarypactumsociale, the pactum
unionis civilis refers to the duty of people who live together on a shared
territoryto set up a publicorderof justice. Thus, Kantwrites:"Amongall the
contractsby which a large group of men unites to form a society (pactum
sociale), the contractestablishinga civil constitution(pactumunioniscivilis)
is of an exceptionalnature.... In all social contracts,we find a unionof many
individualsfor some common end which they all share. But a union as an
end in itself which they all ought to share and which is thus an absoluteand
primaryduty in all externalrelationshipswhatsoeveramong humanbeings
(who cannot avoid mutually influencing one another),is only found in a
society in so far as it constitutesa civil state, i.e. a commonwealth."99 By
distinguishingthepactumunioniscivilis from otherforms of social contract,
Kantmakesit clearthatthe establishmentof a civil constitutionis not merely
a matter of utilitarianinterests; above all, it is the task of the political
self-constitutionof a republic.
The strugglefor rightdoes notendwiththeestablishmentof a civil society.
It does, however, take a differentshape. Whereasin the state of naturethe
Bielefeldt/ KANT'S PHILOSOPHYOF FREEDOM 551

individual, under some circumstances,was permittedto employ means of


physical coercion, in a civil society coercive power is monopolized in the
hands of the government. Yet, this monopoly of coercive power is not
synonymous with a monopoly of politics. Politics continuesto be the com-
mon affair of all citizens who have the right-and indeed the duty-to
suggest anddebatepossible improvementsof the commonwealthwith regard
to the principleof right.Publicdebateis the mediumof the strugglefor right
in a civil society. Kantthereforedemandsthatthe "publicuse of man'sreason
must always be free."10?
Consequently,obedience to the governmentwhich Kant requiresof the
citizens should always be connectedwith the willingness to undertakepublic
criticism of the government.What is needed is not a blind but a critical
obedience, an obedience in the spiritof Aufkldrung.As Kantironicallyputs
it, the citizens shouldassumethatthe headof state,whose politicallegitimacy
dependson his representingthe unitedwill of thepeople, "wants"the citizens
to make public their grievances, since any political injustice would finally
undermine the legitimacy of his own government. "Thus the citizen
must... be entitled to make public his opinion on whateverof the ruler's
measuresseem to him to constitutean injusticeagainstthe commonwealth.
Forto assumethatthe headof statecan neithermakemistakesnorbe ignorant
of anythingwould be to imply thathe receives divine inspirationandis more
than a human being. Thusfreedom of the pen is the only safeguardof the
rights of the people."10'
Whereascitizens should engage in public debate and political criticism,
rulers have the duty "to govern in a republican... manner,even although
they may rule autocratically.'"02This is to say that even in the case that a
truly republicanconstitutiondoes not yet exist, the ruler ought to legislate
and govern as a "representative"of the rights of the people. He ought to
legislate in such a way as to anticipatethe people'srepublicanself-legislation
and to pave the way for accomplishinga genuine republicin the future.As
in the state of natureuse of violence was permittedonly as an anticipation
of a public administrationof rights,in an autocraticstatethe governmentcan
exercise power legitimately only as an anticipationof a futurerepublic of
self-legislating citizens. A nonrepublicangovernmentcan only claim a pro-
visional legitimacy,which will be extinguishedas soon as a truerepublichas
been established.Thus, while Kant clearly rejects a right to revolutionand
resistance,to notjeopardizethe achievementof a civil society, he puts all the
moreemphasison the government'sdutyto undertakeconstitutionalreforms
toward republicanism,a duty of which the ruler should constantly be re-
mindedby his citizens.
THEORY
552 POLITICAL / August
1997

In an ironicalinterpretation,Kantdeclaresthe Frenchrepublicof his day


to be in fact the resultof an erroneousreformratherthanof a revolution.He
says that the Frenchking Louis XVI was not aware of what he was doing
when he summonedthe GeneralEstatesas representativesof the people. The
king therebymistakenlysurrenderedhis own power,the legitimacyof which
hadbeenonlyprovisional,thatis, ananticipationof thepeople'sself-legislation.
"Apowerfulrulerin ourtime thereforemadea very seriouserrorinjudgment
when, to extricatehimself from the embarrassmentof large state debts, he
left it to the people to take this burdenon itself and distributeit as it saw fit;
for then the legislative authority naturally came into the people's
hands. ... The consequence was that the monarch'ssovereignty wholly
disappeared... and passed to the people."'03
Kantdeclareshis supportof the Frenchrepublic,insofaras it embodies a
liberalconstitutionbased on humanrights,people's sovereignty,and parlia-
mentary representation.He praises the coming into being of a genuine
republic as a historic event which "can never be forgotten, since it has
revealed in humannaturean aptitudeand power for improvementof a kind
which no politiciancould have thoughtup by examiningthe course of events
in the past."'4 The Frenchrepublicamountsto a turningpoint in the history
of humankindbecause it reveals the possibility of political progress and
ushers in a new era of republicanism.

4. The Contributionof Kantian


Republicanismto Political Philosophy

It is certainlytruethatKant'srepublicanismremainswithinthe boundaries
of the late eighteenthcentury.It thus also includes aspects which, from a
modern,democraticpoint of view, are strange,if not irritating.For instance,
in keeping with the Aristoteliandoctrine of constitutions,Kant considers
democracya polity without separationof powers and hence "necessarilya
despotism."05Even more troubling, he excludes both women and those
unableto supportthemselveseconomicallyfrom the rightto vote, confining
theminsteadto a statusof mere "passive"ratherthan"active"citizenship.106
His argumentthat economic independenceis a necessaryempiricalprecon-
dition to free citizenship has rightly been criticized, not infrequentlyby
referringto the universal"innateright"of freedomandequality,a rightwhich
Kanthimself puts forwardbut, nonetheless,fails to apply to his concept of
citizenship.107 Neo-Kantiansocialists, like EduardBernstein,have therefore
turned Kant's argumentupside down and demandedthat the state should
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 553

guaranteethe basic socioeconomic conditions for the actual enjoyment of


equal freedom and participation.108
However,in spite of its undeniableshortcomings,Kant'spoliticalphiloso-
phy may still be helpful today for achieving a better understandingof the
innerconnectednessbetweenliberalismandrepublicanism.Politicalcommit-
ment of liberals is frequentlyconsideredpurelyinstrumentalin that liberal-
ism's political goals are said to be more or less confined to preserving
prepoliticalindividualrights.This line of interpretationis largely sharedby
both liberals09 and their republicancritics.110Kant's political philosophy
providessome hintsas to how to overcomethispurportedoppositionbetween
liberalismandrepublicanism.He invokesthe idea of politicalself-legislation
as the normativesource of all concreterights which themselves come about
only within the sphereof politics. Concreterightsof freedomarenot priorto
politics in the sense of being outsideof politicaldebate.Accordingly,political
commitmentcannotbe reducedto protectinggiven individualrights,since it
is the task of politics to actively bring about-as well as to defend, foster,
and improve-an order of justice through which the principle of equal
freedomcan become reality.A republicconstitutedby politicallyresponsible
citizens must therefore have a genuinely normativeratherthan a merely
instrumentalstatus. At the same time, it is this normativetask-the task to
fight for an order of right-which binds politics normativelyfrom within.
Hence, liberalprinciplesdo not operateas a merely externalimposition on
republicanpolitics; instead,they make up the inherentnormativequality of
a republicancommitmentof citizens who recognize each othermutuallyon
the basis of equality and freedom. Similarly,liberal institutions-such as a
bill of rights and a separationof powers-are not only means of "taming"
and "tempering"politics; rather,they can be understoodas providing the
occasion to undertakean institutionalizedrepublicanself-control and self-
criticismwith regardto the genuinelynormativesubstanceof bothliberalism
and modem republicanism;thatis, the unalienabledignity of the personas a
morally autonomoussubject.

NOTES

1. See Michael J. Sandel,ed., "Introduction,"


Liberalismand Its Critics(New York:New
YorkUniversityPress, 1984), 5.
2. Kant,"AnAnswerto the Question:WhatIs Enlightenment?"(1784), Political Writings,
2d ed., trans.H. B. Nisbet, ed. Hans Reiss (Cambridge:CambridgeUniversityPress, 1991), 54.
554 POLITICALTHEORY/ August 1997

3. Ibid., 54.
4. Ibid., 54.
5. Ibid., 54.
6. Ibid., 54.
7. Ibid., 58.
8. See Aquinas,SummaTheologiae,II/I,qu. 19, art.5, resp.
9. Kant,Metaphysicsof Morals (1797). Translated,with introductionand notes, by Mary
Gregor(Cambridge:CambridgeUniversityPress, 1991), 202.
10. Kant, Foundationsof the Metaphysicsof Morals (1785). Translatedby Lewis White
Beck, criticalessays editedby RobertPaul Wolff (New York:Macmillan,1969), 11.
11. Lewis White Beck, "Kant'sTwo Conceptionsof the Will in Their Political Context,"
Kantand Political Philosophy:TheContemporaryLegacy,ed. RonaldBeinerandWilliamJames
Booth (New Haven, CT,and London:Yale UniversityPress, 1993), 43.
12. See OnoraO'Neill, Constructionsof Reason:Explorationsof Kant'sPractical Philoso-
phy (Cambridge:CambridgeUniversityPress, 1989), 77.
13. Foundations,56.
14. The distinction between Wille and Willkiir,that is, between the inwardly binding
self-legislative "will"on one handandthe facultyof "choice"on the other,is developedby Kant
in Metaphysicsof Morals.For a closer analysis,see Beck, "Kant'sTwo Conceptions,"Kantand
Political Philosophy.
15. See J. B. Schneewind, "Autonomy,Obligation,and Virtue:An Overview of Kant's
MoralPhilosophy,"TheCambridgeCompanionto Kant,ed. PaulGuyer(Cambridge:Cambridge
UniversityPress, 1992), 309-41.
16. See MichaelJ. Sandel,"Justiceandthe Good,"Liberalismand Its Critics, 170: "Freed
from the dictatesof natureand the sanctionof social roles, the deontologicalsubjectis installed
as sovereign,cast as the authorof the only moralmeaningsthereare."The same misunderstand-
ing can be foundin the introductionby JohnLaddto Kant's"MetaphysicalElementsof Justice,"
pt. I of Metaphysics of Morals (Indianapolis,IN: Bobbs-Merrill,1965), xxvi: "It is clear,
therefore,that,in Kant'stheoryof moralautonomy,the individual'sWill plays the same role that
is assigned to the Will of God by some theologians;it providesthe foundationof morality."
17. Foundations,35: "Thusno imperativeshold for the divine will or, more generally,for
a holy will. The 'ought'is here out of place, for the volitionof itself is necessarilyin unison with
the law. Thereforeimperativesare only formulasexpressing the relationof objective laws of
volition in general to the subjectiveimperfectionof the will of this or that rationalbeing, e.g.,
the humanwill."
18. Kant, Critiqueof Practical Reason (1788). 3rd ed., trans.and ed. Lewis White Beck
(New York:Macmillan,1993), 86.
19. See Kant'sanalysisof the conceptof the "highestgood"in Critiqueof PracticalReason,
116 ff.
20. Kant confesses that readingRousseau has liberatedhim from his formerintellectual
superciliousnessand made him respect the moralityof ordinarypeople. See Kant's Collected
Works,ed. PrussianAcademy of Sciences (Berlin, 1902 ff), 20:44.
21. Critiqueof Practical Reason, 8, footnote.
22. Foundations,23.
23. Ibid., 24 f.
24. See OtfriedHoffe, ImmanuelKant(Munich:C. H. Beck, 1983), 172.
25. These distinctionscan be foundin the first two sections of Foundations.
26. See, for instance,Seyla Benhabib,Situatingthe Self: Gender,Communityand Postmod-
ernismand ContemporaryEthics (New York:Routledge, 1992), 131.
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 555

27. See Dieter Henrich,"DerBegriff der sittlichenEinsichtund KantsLehrevom Faktum


der Vernunft,"Kant: Zur Deutung seiner Theorie von Erkennenund Handelnin, ed. Gerold
Prauss(Cologne: Kiepenheuer& Witsch, 1973), 223-54.
28. Foundations,94.
29. See the thirdantinomyof natureversus freedomin the dialectic of the Critiqueof Pure
Reason (1781). For an interpretation,see Henry E. Allison, Kant'sTheoryof Freedom (Cam-
bridge:CambridgeUniversityPress, 1990), 11 ff.
30. Foundations,89.
31. Critiqueof PracticalReason,70 ff. Foran analysisof Kant'stypic,see PaulDietrichson,
"Kant'sCriteriaof Universalizability,"withinthe series of criticalessays in the editionby Robert
Paul Wolff of Kant's Foundations, 163-207; GerhardKriger, Philosophie und Moral in der
KantischenKritik,2d ed. (Tibingen: Mohr-Siebeck,1967), 84 ff; JohannesSchwartlander,Der
Menschist Person: KantsLehrevomMenschen(Stuttgart:Kohlhammer,1968), 154 ff; Heinrich
Bockerstette, Aporien der Freiheit und ihre Aufkldrungdurch Kant (Stuttgart:Frommann
Holzboog, 1982), 325 ff; AnnemariePieper,"Kantund die Methodeder Analogie,"Kantin der
Diskussion der Modeme, ed. GerhardSchonrichand YasushiKato (Frankfurt/M.:Suhrkamp,
1996), 92-112.
32. Critiqueof Practical Reason, 48.
33. Ibid., 169.
34. Foundations,20.
35. Ibid., 20, footnote.
36. OnoraO'Neill, "Consistencyin Action,"Moralityand Universality:Essays on Ethical
Universalizability,ed. Nelson T. Potterand MarkTimmons(Dordrecht:D. Reidel, 1985), 162.
37. Foundations,44.
38. Ibid., 23.
39. Ibid., 34.
40. RawlsdiffersessentiallyfromKant.Inhis Theoryof Justice(Oxford:OxfordUniversity
Press, 1971), he fails to distinguishbetween practicaland theoreticaluse of reason. Conse-
quently,the universalizabilitytest which Rawls carriesout with his constructionof an "original
position"amountsto a merethoughtexperiment.See HeinerBielefeldt,NeuzeitlichesFreiheitsrecht
und politische Gerechtigkeit: Perspektiven der Gesellschaftsvertragstheorien(Wurzburg:
Kongishausen& Neumann, 1990), 127 ff.
41. Foundations,6.
42. See HannahArendt,Lectureson Kant'sPolitical Philosophy,ed. RonaldBeiner,with
an interpretativeessay (Chicago:Universityof Chicago Press, 1982).
43. See RonaldBeiner,Political Judgment(London:Methuen,1983), 63 ff.
44. Kant, "Uber ein vermeintes Recht aus Menschenliebe zu liigen" (1797), Collected
Works,8:423-30.
45. L. W. Beck has argued that, from a systematic point of view, the universalizability
requirementof the categoricalimperativecan well be applied to maxims that are formulated
conditionally,thatis, in if-clauses. This possibilityof"apodictichypotheticalimperatives"is not
taken into accountby Kant.See Lewis White Beck, "ApodicticImperatives,"Kant Studien49
(1957-58), 7-24.
46. See Benhabib,Judgementand the Moral Foundationsof politics in HannahArendt's
thought.In situatingthe self, 121-44.
47. Ibid., 54.
48. See RichardMcCarty,"Motivationand Moral Choice in Kant's Theory of Rational
Agency,"Kant Studien85 (1994), 15-31.
556 POLITICALTHEORY/ August 1997

49. The "sense of justice"which Rawls invokes as a motivationto act in accordancewith


the principlesof justice (see Theoryof Justice, chap. 8) is no equivalentto Kant's notion of
respect, because the Rawlsian sense of justice operatesas a psychological, that is, empirical,
inclination,whereas for Kant the moral law itself works as a motive to act morally,a motive
which goes beyond the realmof empiricalpsychology.
50. Foundations,16.
51. Critiqueof Practical Reason, 19 f.
52. H. J. Paton,TheCategoricalImperative:A Studyin Kant'sMoralPhilosophy(London:
Hutchinson,1947), 63 ff.
53. See Charles Taylor,Philosophy and the Human Sciences: Philosophical Papers 2
(Cambridge:CambridgeUniversityPress, 1985), 240.
54. Critiqueof Practical Reason, 77 f.
55. Ibid., 81.
56. Ibid., 81.
57. Benhabib,In the shadowof Aristotleand Hegel. In situatingthe self, 23-67.
58. Foundations,60.
59. On the differentformulationsof the categoricalimperativeand theirinterrelation,see
Paton, The CategoricalImperative,129 ff.
60. Foundations,20.
61. Peter Berger, "On the Obsolescence of the Concept of Honour,"Liberalismand Its
Critics, 149-58.
62. See Steven B. Smith, Hegel's Critique of Liberalism:Rights in Context (Chicago:
Universityof Chicago Press, 1989), 70 ff.
63. Metaphysicsof Morals, 56.
64. Ibid.,63. I have replacedthe term"universallaw"in Gregor'stranslationwith the term
"generallaw."For an explanation,see note 76.
65. Ibid., 63: "Thisprincipleof innatefreedomalreadyinvolves the following authoriza-
tions, which are not really distinctfrom it...: innateequality,thatis, independencefrom being
boundby othersto more thanone can in turnbind them."
66. Ibid., 57.
67. Ibid., 57.
68. Ibid., 46. For a closer analysisof this differencebetween ethics andjurisprudence,see
Wolfgang Kersting, WohlgeordneteFreiheit: ImmanuelKants Rechts- und Staatsphilosopie
(Frankfurt/M.:Suhrkamp,1993), 175 ff.
69. Kant,Religionwithinthe Limitsof ReasonAlone (1793). Translated,with an introduc-
tion and notes, by TheodoreM. Greeneand Hoyt H. Hudson,andessay by JohnR. Silber(New
York:Harper& Row, 1960), 87.
70. See GerhardLuf, Freiheitund Gleichheit:Die AktualitdtimpolitischenDenkenKants
(Viennaand New York:Springer,1978), 53.
71. Kant,"PerpetualPeace: A PhilosophicalSketch"(1795), Political Writings,101.
72. See Klaus E. Kaehler,"Die Argumentevon apriorischerRechtslehreund positivem
Recht bei Kant,"Jahrbuchfiir Recht und Ethik(AnnualReview of Law and Ethics) 1 (1993):
103-12.
73. See "PerpetualPeace," 126 f.
74. Metaphysicsof Morals, 56.
75. Berger,"Onthe Obsolescence of the Conceptof Honour,"Liberalismand Its Critics.
76. This translationcan sometimesbe foundin the editionby HansReiss of Kant'sPolitical
Writings(trans.H. B. Nisbet), where Kant'sdefinitionof rightreads as follows: "Rightis the
restrictionof each individual'sfreedomso thatit harmoniseswith the freedomof everyone else
Bielefeldt / KANT'S PHILOSOPHYOF FREEDOM 557

(in so far as this is possible withinthe termsof a general law)." Kant,"Onthe CommonSaying:
'This May Be Truein Theory,but It Does Not Apply in Practice'" (1793), Political Writings,
73 (emphasisadded).It shouldbe notedthatNisbet'stranslationof allgemeinseems to randomly
shift back andforthbetween"general"and"universal."Gregor'stranslationcan bejustifiedwith
regard to Kant himself, who, by invoking the Latin distinction between "universal"and
"general,"emphasizes that the very concept of law requiresuniversalityin the sense of being
valid withoutarbitraryexceptions. See Kant,"PerpetualPeace,"98.
77. See IngeborgMaus, Zur Aufkldrungder Demokratietheorie:Rechts- und demokrati-
etheoretischeUberlegungenim Anschlufian Kant (Frankfurt/M.:Suhrkamp,1992).
78. See Theoryand Practice, 79: "Anentirepeople cannot,however,be expected to reach
unanimity,but only to show a majorityof votes (and not even of directvotes, but simply of the
votes of those delegatedin a large nationto representthe people)."See also "PerpetualPeace,"
101: "Forany form of governmentwhich is not representativeis essentially an anomaly."
79. Theoryand Practice, 79.
80. See Rousseau,Du contratsocial, II, 4; Kant,Metaphysicsof Morals, 128.
81. See Rawls, Theoryof Justice, 118 ff.
82. Du contratsocial, II, 6.
83. Metaphysicsof Morals, 128: decrees "aredirectedto decisions in particularcases and
are given as subjectto be changed."
84. "PerpetualPeace," 101.
85. Kant, "Idea for a Universal History with a CosmopolitanPurpose"(1784), Political
Writings,46.
86. "PerpetualPeace," 108.
87. Ibid., 114.
88. Ibid., 114.
89. An example is the interpretationof Kant'sphilosophyof rightby Hans-GeorgDeggau,
Die Aporiender RechtslehreKants (Stuttgart:FrommannHolzboog, 1983).
90. Metaphysicsof Morals, 124.
91. The "naturalright"which Hobbes assumes people have in the state of natureis purely
abstractin thatit permitseveryone to use all availablemeansof self-defense. It includesneither
normativeclaims nor normativeconstraints.See Leviathan,I, 14. Kant,by contrast,postulates
the validity of concrete legal claims and legal constraintsalso in the state of nature. See
Metaphysicsof Morals, 77 ff. On the differencebetween Hobbes and Kant in this regard,see
Kersting,WohlgeordneteFreiheit:ImmanuelKantsRechts-und Staatsphilosopie,329.
92. Metaphysicsof Morals, 77.
93. Ibid., 85.
94. See C. B. Macpherson,The Political Theoryof Possessive Individualism:Hobbes to
Locke (Oxford:OxfordUniversityPress, 1962).
95. Metaphysicsof Morals, 77.
96. See "PerpetualPeace,"93 ff.
97. Ibid., 96.
98. Ibid., 117.
99. Theoryand Practice, 73. That Kant purges the concept of a social contractfrom all
voluntaristicconnotationsis rightlypointedout by PatrickRiley, Willand Political Legitimacy:
A CriticalExpositionof Social ContractTheoryin Hobbes, Locke,Rousseau,Kant,and Hegel
(Cambridge,MA: HarvardUniversityPress, 1982), 125 ff.
100. "WhatIs Enlightenment?"55.
101. Theoryand Practice, 84 f.
102. Kant,"TheContestof Faculties"(1797), Political Writings,187.
558 POLITICALTHEORY/ August 1997

103. Metaphysicsof Morals, 149.


104. "Contestof Faculties,"184.
105. "PerpetualPeace," 101.
106. See Theoryand Practice, 78: "Theonly qualificationrequiredby a citizen (apart,of
course, from being an adultmale) is thathe must be his own master(sui iuris), and must have
some property(which can include any skill, trade,fine artor science) to supporthimself."
107. See, for instance, WolfgangSchild, "Freiheit-Gleichheit-'Selbstaindigkeit' (Kant):
Strukturmomente der Freiheit,"Menschenrechteund Demokratie,ed. JohannesSchwartlander
(Kehl: N. P. Engel, 1981), 135-76.
108. See EduardBernstein,Die Voraussetzungendes Sozialismus und die Aufgaben der
Sozialdemokratie(1899) (Reinbek:Rowohlt, 1969).
109. See, for instance,IsaiahBerlin,"TwoConceptsof Liberty,"Liberalismand Its Critics,
15-36.
110. See, for instance,BenjaminR. Barber,"LiberalDemocracyandthe Costs of Consent,"
Liberalismand the MoralLife, ed. Nancy L. Rosenblum(Cambridge,MA: HarvardUniversity
Press, 1989), 54-68.

Heiner Bielefeldt teaches at the Faculty of Education, University of Bielefeld. He


receiveda doctoratedegreefrom the Universityof Tiibingenin 1989. He is interestedin
humanrightsstudiesand is currentlypreparinga book titledThe Philosophyof Human
Rights:KantianUniversalismand Cross-CulturalNormativeDiscourse.