Immanuel Kant, the Social Contract, and the State

Smith explains how Robert Paul Wolff and Immanuel Kant used the same principle of moral autonomy to reach opposite conclusions about the legitimacy of the state.

George H. Smith

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In 1970, the philosopher Robert Paul Wolff published a remarkable little book, In Defense of Anarchism, which sold over 200,000 copies in the first two editions. Wolff (born in 1933) is a highly regarded Kantian scholar, having published two major works on Kant, and Wolff based his case for anarchism largely on Kant’s theory of moral autonomy, a notion that I discussed in some previous essays in this series. To quote from In Defense of Anarchism (pp. 13-14):

The responsible man is not capricious or anarchic, for he does acknowledge himself bound by moral constraints. But he insists that he alone is the judge of those constraints. He may listen to the advice of others, but he makes it his own by determining for himself whether it is good advice…..

Since the responsible man arrives at moral decisions which he expresses to himself in the form of imperatives, we may say that he gives laws to himself, or is self-​legislating. In short, he is autonomous. As Kant argued, moral autonomy is a combination of freedom and responsibility; it is submission to laws which one has made for himself. The autonomous man, insofar as he is autonomous, is not subject to the will of another. He may do what another tells him, but not because he has been told to do it. He is therefore, in the political sense of the word, free.

The state, according to Wolff, claims not merely the power to compel obedience but also the moral authority to demand obedience: “To claim authority is to claim the right to be obeyed.” But this moral claim by the state conflicts with our moral autonomy as rational, volitional agents. Wolff (p. 18) summarized his basic argument as follows:

The defining mark of the state is authority, the right to rule. The primary obligation of man is autonomy, the refusal to be ruled. It would seem, then, that there can be no resolution of the conflict between the autonomy of the individual and the putative authority of the state. Insofar as a man fulfills his obligation to make himself the author of his decisions, he will resist the state’s claim to have authority over him. That is to say, he will deny that he has a duty to obey the laws of the state simply because they are the laws. In that sense, it would seem that anarchism is the only political doctrine consistent with the virtue of autonomy.

Of course, we may conform to a governmental law because we believe that the action in question is unjust in its own right, as assessed by our own reason, as with actions like theft or murder. Or we may obey a law for pragmatic reasons, as when we pay taxes because we wish to avoid legal penalties for noncompliance. But such cases have no bearing on Wolff’s argument that autonomy and state authority are incompatible. The laws of a government (including the laws of a democratic government) carry no inherent moral authority. In no case should the autonomous individual obey a law merely because the government has decreed it. Thus, although there have been many de facto states with the power to compel obedience, there has never existed, nor will there ever exist, a de jure state with the authority to pass laws and issue decrees that individuals are morally obligated to obey, merely because they emanate from a state. Kant maintained that as autonomous moral agents we are responsible for our own decisions and actions; and, in the view of Wolff, to surrender this responsibility to any person or institution, including a state, is to undercut our moral autonomy at its root. We should never sacrifice our own judgments of right and wrong to the demands of a government. We should therefore repudiate the very concept of a de jure, or morally legitimate, state. Anarchism, or society without a state, is the only rational position for morally autonomous agents.

I have given only a barebones summary of Wolff’s defense of anarchism. It is not my intention in this essay to explain his arguments in detail or to assess their validity. Rather, I have included Wolff’s defense of anarchism in my discussion of Kant’s political theory because the two philosophers, beginning with the same Kantian premise of moral autonomy, developed radically different conclusions about the state. Those who have read my earlier explanations of Kant’s ideas about autonomy, individual rights, and equal freedom will appreciate how radically individualistic his foundational principles are. And even if we don’t push Kant’s principle of autonomy as far as Wolff did by maintaining that it entails anarchism, we might reasonably expect that anyone who gives pride of place to the Kantian conception of autonomy in his political theory will, at the very least, end up defending a minimal government of the sort advocated by many modern libertarians.

But this is not what we find in Kant’s own political arguments and conclusions. Contrary to Wolff, Kant used the principle of autonomy to justify our duty to obey virtually every law of the state, including those enacted by tyrannical governments. Kant absolutely denied any rights of resistance and revolution, regardless of how corrupt or despotic a government may be, and regardless of how much a law may violate the rights of innocent people. The most Kant conceded was so-​called passive disobedience when a law violates a clear dictate of conscience. In other words, one may refuse to comply with a law but only if one passively submits to the legally prescribed punishment for disobedience. Kant also defended freedom of speech and press as a legitimate way to reform an unjust government. One should be able to protest publicly against unjust laws, but even this method has its limits. Speech that might incite citizens to disobey or resist the decrees of an established government should not be permitted.

So how did Kant get from here to there?—from the same individualistic premise that Wolff used to condemn the state to a demand that we obey the state unconditionally as a moral duty? Some historians have pointed out that Kant lived under an authoritarian Prussian government; they suggest that Kant was unwilling to incur the wrath of the Prussian state by so much as hinting that subjects have a right to resist the unjust decrees of a sovereign. Other historians have noted that Kant expressed admiration for the French Revolution and that his endorsement of that watershed in European history indicates something fishy in Kant’s theoretical repudiation of the rights of resistance and revolution. Whatever the merits of these and other explanations may be, the fact remains that Kant defended his opposition to the rights of resistance and revolution, even against the most tyrannical governments, in considerable detail. Kant’s opposition was closely linked to his theory of political sovereignty, and this, in turn, was grounded in his theory of social contract.

Social contract theory has a long and checkered history, and in a future series on the social contract I shall explore some of its important variations; for now I will merely sketch a few controversial aspects of social contract theory that may help us to understand Kant’s approach.

The social contract played an especially important role in the development of classical liberalism. That a legitimate government requires the consent of the people was a fundamental tenet of liberal political theory, and the social contract served as an explanation of how the necessary consent had been obtained. In this respect social contract theory served to legitimate some existing governments, but it also was used to delegitimate other governments, condemning them as tyrannical. The latter method was indispensable to the justification of the rights of resistance and revolution, as found in the writings of John Locke and many other liberals in his tradition.

There were two basic versions of social contract theory. Was the social contract a historical fact? Or was it a theoretical construct used to analyze the source and extent of political obligation? Some philosophers, most notably Thomas Hobbes, explicitly used the social contract as a theoretical construct, a method of explaining why rational people would voluntarily leave the state of nature and surrender their rights to an absolute government. John Locke, however, was less clear about the philosophic status of the social contract. He asserted that some governments originated in the consent of the governed, whereas some governments emerged from violence and conquest. But Locke did not clearly explain the implications for governments that did not originate in consent. Suppose a government was established centuries ago by unjust means. Would this historical fact render the present government illegitimate and ripe for revolution? Thomas Paine and other radical liberals answered this question with a resounding Yes! According to this radical, libertarian wing of liberalism, how a government originated was directly relevant to the present legitimacy of that government.

Eventually some liberals with conservative tendencies denounced historical investigations into the origins of existing states as an extremely dangerous enterprise. For example, the eighteenth-​century liberal clergyman Josiah Tucker claimed that such historical investigations had undermined the wise political maxim, “Not to be very inquisitive concerning the original Title of the reigning Powers.” David Hume, who was probably the most influential proponent of this way of thinking, agreed. As Hume wrote in A Treatise of Human Nature:

No maxim is more conformable, both to prudence and morals, than to submit quietly to the government, which we find establish’d in the country where we happen to live, without enquiring too curiously into its origin and first establishment. Few governments will bear being examin’d so rigorously.

According to Hume, any person who appeals to the origin of his government in an effort to undercut the legitimacy of that government and thereby deny its right to demand the allegiance and obedience of its subjects would be “justly thought to maintain a very extravagant paradox, and to shock the common sense and judgment of mankind.” Kant (who greatly admired Hume) followed Hume’s lead when he warned against the serious threat posed when the legitimacy of a government is linked to its historical origin. In The Metaphysical Elements of Justice (trans. John Ladd, Bobbs-​Merrill, 1965, p. 84), Kant wrote:

The origin of the supreme authority is, from the practical point of view, not open to scrutiny by the people who are subject to it; that is, the subject should not be overly curious about its origin as though the right of obedience due it were open to doubt….Whether as a historical fact an actual contract between them originally preceded the submission to authority or whether, instead, the authority preceded it and the law only came later or even is supposed to have followed in this order—these are pointless questions that threaten the state with danger if they are asked with too much sophistication by a people who are already subject to civil law; for, if the subject decides to resist the present ruling authority as the result of ruminating on its origin, he would be rightfully punished, destroyed, or exiled…in accordance with the laws of that authority itself.

Kant argued that any “empirical” investigation into the origin of a government is irrelevant to the problem of our political obligation to an existing government. It matters not at all whether a social contract ever actually happened. Rather, Kant defended a hypothetical social contract, an ideal that is justified by reason alone. This hypothetical social contract specifies what rational people should consent to, not what they may or may not have consented to in the past. The hypothetical social contract is the source of our moral obligation to obey our government. In presuming that rational people should and would consent to have their moral autonomy protected by a government rather than risk the insecurity of living in a state of nature that lacks the rule of law and impartial arbiters to resolve disputes, subjects may be said to have consented to be ruled by their government and agreed to obey its laws and decrees. Thus, contrary to Wolff, Kant believed that our moral obligation to obey government does not conflict with our moral autonomy in the least. People have a moral duty to obey the dictates of reason; and reason demands that we voluntarily submit to the hypothetical social contract and thereby subordinate our personal decisions in the political sphere to the legitimate moral authority of government. For Kant, this is an exercise of our moral autonomy, not a violation of it.

To call Kant’s argument for the moral authority of the state, via a hypothetical social contract, convoluted would be an understatement, but it contains some interesting and influential features. Its influence on modern political philosophy is most evident in the hypothetical social contract defended by John Rawls in A Theory of Justice (1971). But any version of a hypothetical social contract is so inexact and elastic that it can be used to justify any political conclusions that philosophers care to pack into it. As J.W. Gough astutely observed in his important study, The Social Contract: A Critical Study of its Development (2nd ed., Oxford, 1957, p. 180): “[W]hen the social contract has admittedly been reduced to an imaginary hypothesis, which has no relation to historical truth, and is intended only as a kind of logical postulate, its content can be manipulated at will, and there is no reason why it should not lead in the end to the totalitarian state.”