#19658 - 3.A. Social Contract Theories Kant - Jurisprudence

LECTURE(s)

• Kant – you should enter the SC because you are FREE (Hobbes – argument from fear = you should enter because the alternative is a lot worse)

• Total philosopher – morality, politics, law, physics, etc.

• Sangiovanni’s text is a counter to Ripstein (the latter likes Kant)

• Korsgaard defends Kant when he says that no rebellion is allowed

Kant’s Method

• Same method across numerous subject matters – politics included

• Enlightenment = we need to explain things via science/observation

• Kant is pro-empiricism, but he realizes that we can’t do this all the way down – experience is not always a very safe ground for conclusions

  • Experience is subjective – who decides whose experience is accurate

• The VERY POSSIBILITY of experience means that some things are true

  • E.g., book is on the table – to be able to understand the sentence, you must believe something things = e.g., that there is space

    • Existence of space isn’t something I experience – its existence is necessary for me to experience anything

• Such presuppositions TRANSCEND empirical limitations – you need the box first, before you fill it with content (experiences)

  • Space cannot be falsified by any experience – truths exist beyond empiricism

• From empirical statement (e.g., book on table), back to presupposition (space), we then make general claims (there is space)

• BUT – this doesn’t mean that there is a book on the table = maybe my eyes deceive me – it’s an empirical question

  • The point are the connections BETWEEN beliefs – if you see a book, there’s no way you can avoid thinking that there’s space; connection is non-empirical

• Discovering presuppositions of our beliefs helps us CLARIFY these beliefs

• Kant applies transcendental thinking to many areas; Hobbes’ thinking is linear (from physics to politics) – Kant ISN’T linear (he doesn’t say he’s going to build a political system via his account of moral goodness) = the METHOD unites them, however

  • Reason

    • Descartes – we exist independently of God = cogito ergo sum

    • Thinking isn’t something you experience – you can be deprived of all sense, and still think

    • Kant goes a step further – if I think, I have reason

      • I know the difference between “is” and “seems”

      • I know by beliefs could be true or false

  • Freedom

    • Reason is free from experience

    • If all your thoughts had some external cause, you wouldn’t be free (like an amoeba)

      • You can DOUBT the existence of external stimuli

    • You can act contrary to desires and experiences = you are free

    • You can think of freedom like this – I can do whatever I want

      • This is ARBITRARY – our will is free if we act based on PRINCIPLES

        • You are your own lawmaker – you make your rules

    • So which principles (rules) do I choose?

      • Your choice, but they will usually be principles that link your desires to what you want to do (if you want an omelette, you need to break eggs) = principles

      • Principles are hypothetical – applies IF I want an omelette

  • Moral goodness

    • Morally good action – doesn’t only satisfy our desires

      • Action motivated by DUTY

      • Moral goods are good INDEPENDENTLY of one’s desires

    • We are free to make laws for ourselves, but we also need to adhere to morality

      • Maybe morality is inconsistent with freedom

        • KANT says no – morality is based on a principle that’s good for all of us to have, no matter our desires

          • Categorical imperative – law of having GOOD WILL; you should endorse this no matter your desires

    • All principles except for good will can be abused:

      • Courageous – I found courage to stab her

      • Charitability – I can be charitable to stave off suspicion

    • The only safe ground for calling something morally good isn’t the outcome, but the quality of the will that guides it – WHY DID YOU DO IT?

      • Knock-down hit on consequentialism (what happens matters) – e.g., whether we should lie depends on what going to happen

    • A will is categorically good if you UNIVERSALIZE it

      • Act on a maxim that you would will to become universal law

        • What if everyone did that?

      • Govern yourself as if your policy would govern the world

      • Act so that you treat humans are ends, never means

    • Kant never says X is wrong – that’d undermine your will; you are the lawmaker – your law is good if the above

    • E.g., don’t murder – Kant won’t tell you that murder is wrong (that’d be undermining your freedom); don’t murder if you think that that’d be a good universal law

    • Some questions:

      • What if you are a masochist? Do you set laws for others?

      • What if someone doesn’t fancy the moral imperative?

  • Politics

    • Moral goodness should never equal justified coercion

      • Our rights don’t depend on moral goodness – even a bad man should have property rights

      • Disagreement on moral questions consistent with coercion

    • Morality and politics are SEPARATE – they rely on different suppositions

    • Justice (external freedom) vs virtue (internal freedom)

    • Two presuppositions – categorical imperative for politics:

      • Universal principle of right

        • Any action is rightful if it can coexist with the freedom of every other person

      • Innate right

        • Right to freedom insofar as that right can coexist with the freedom of all others

    • The key idea here is mutual independence

      • External freedom – free of constrains from another’s choice

        • E.g., one seat left in auditorium – you take it; are you limiting someone’s freedom = yes, but it’d be crazy to call that a wrong; if you come in and drive out someone of a seat – also constraining freedom, but this isn’t alright

        • Ripstein tries distinguishing between these situations:

          • “Affected” by another’s choice vs “subjected” to another’s choice

        • Ripstein says nothing new – restating the distinction between good things and bad things = doesn’t take us any further (Sangiovanni)

    • If UPR/IR makes sense, two issues:

      • Private right

      • Public right

        • Role of GOV isn’t to protect certain rights – e.g., contractual

        • This assumes that we have rights/freedoms in SoN – freedoms/rights are INCONCEIVABLE WITHOUT State

        • E.g., when I coerce you, you are unfree – coercion must be authorized by a will that reflects EVERYONE’S choice

          • Collective will

        • We can only express collective will through GOV – you need to submit to GOV BECAUSE you are free

        • The issue with SoN is not that rights are unenforceable, but that rights are INDETERMINATE

Kant as a social contract theorist

• Hobbes – everyone is in contract except SOV; Kant says NO – SOV is part of contract

• SOV can’t enact laws that violate citizens’ rights + cannot overstep authority of SC

• Enlightened despot is acceptable under Kant; DEM is maybe the best for of GOV, but it’s the best CONTINGENTLY

The powers of citizens

• GOV is bound by freedom, BUT rebellion is always PROHIBITED

  • When someone rebels, he is ASSERTING HIS WILL against will of GOV – “Who are you speaking for?”

    • GOV is NECESSARILY reflection of GOV will

• Kant says this because he has a PROCEDURAL conception of collective will – who elected you as a spokesperson? (Korsgaard) If they can’t show some procedural evidence – rebels fail

• Kant is pro-FRA Revolution – you can praise someone’s motives, but condemn their act

• You can still voice against GOV – passive disobedience:

  • Negative resistance

  • Refusal to obey due to “inner morality”

READING(s)

Kant, ‘On the Common Saying that May be True in Theory but not in Practice (Against Hobbes)’

• In SCs, union of people for an end which they all share; BUT a union which is itself an end which they all ought to share = civil state (commonwealth)

• A commonwealth brings external duties, the conditio sine qua non there is the right of men under coercive public laws to be given what they deserve/saved from attack

• The idea of an external right is based on FREEDOM – nothing to do with end that men have in nature (i.e., happiness)

• The civil state, being a purely lawful state, is based on the following principles:

  • Freedom of every man as a human being

    • No one can compel me to be happy in accordance with his conception of welfare – everyone can pursue their happiness if they don’t infringe

  • Equality of each with all others as a subject

    • Each member of commonwealth has rights of coercion in relation to the others, except for head of State

    • No one can coerce another except through the public law and its executor (the head of state)

    • Since birth is not an act by the person who is born – everyone must be equal before the law]

    • This right cannot be forfeited save through a crime

    • Gracious lord = one to which coercion doesn’t apply – no more than one gracious lord per State

  • Independence of each member as a citizen

    • For actual legislation, all who are free are considered equal under these laws, but they don’t have the right to make these laws = they are obliged to, and benefit from these laws

    • A public law is different = act of public will, from which all rights proceed

    • Individual will cannot legislate for a commonwealth – freedom, equality, and UNITY of ALL members

      • Prerequisite for unity = independence

    • This basic law (i.e., will of the people) = ORIGINAL CONTRACT

    • Anyone who can vote on this is a citizen – the only criterion is that he be his own master, and have property

    • Those who have a right to vote mut UNANIMOUSLY agree to the law of public justice – this is of course unrealistic (majority voting is, however)

Conclusion

• This original contract doesn’t exist as a fact – it’d have to be historically proven

• Instead, it’s an IDEA of reason, but with practical value = every legislator must frame his laws so that they could be produced by the general will

  • Test of rightfulness – if the whole people couldn’t possibly agree to...