10.2.1 Positivism is Question-Begging

Positivist explanations violate neutrality in a more or less predictable manner: a positivist account of legal obligations cannot afford involving anything other than law-practices in their explanation, on pain of contradicting its own commitment to an understanding of legal phenomena exclusively in terms of their social sources. If positivism left space for legal relations to operate as self-standing grounds of legal obligations, it would be inviting the suspicion that the determinants of law might include elements other than law-practices. Instead, legal relations must be strictly understood as descriptions of the scope of rules which are grounded exclusively in law-practices. Here is Scott Shapiro confirming this picture in his book Legality’:

Accordingly, and setting aside finer nuances of Shapiro’s terminology, legal relations obtain when the law assigns rights, obligations, and powers on the basis of institutional rules whose existence or validity can be accounted for by exclusive reference to law-practices. In other words, from a positivist perspective, there is no room for legal relations to play an independent role as grounds of legal obligations. Instead, any account of the grounds of legal obligations would need to revert to the typically positivist explanation, as exemplified by the long-standing tradition introduced by H. L. A. Hart.Footnote ¹² This familiar story submits that legal obligations are determined, at the most fundamental level, exclusively by social facts, even though a legal system might incorporate other normative (e.g. moral) considerations, on the condition that the standards of incorporation are laid down in a rule of recognition whose existence can be traced back to sources that are exclusively social.Footnote ¹³ In this landscape, the only role left for legal relations is that of describing the scope of whatever, on the positivist story, may count as a legal obligation.

Along these lines positivism embraces the scope-oriented understanding of legal relations and demotes them to descriptions of scope of rule-based obligations, which are ultimately grounded exclusively in law-practices. In ruling out any deeper explanatory role for legal relations, the positivist strategy is begging the question of the explanation of legal obligations in favour of law-practices and, ultimately, positivism. Conversely, to steer away from that fallacy, positivism would need to allow for explanations of relations that do not involve law-practices.

10.2.2 How Non-Positivism Inherits Circularity

To a significant degree, contemporary non-positivism stands out from its predecessors by its effort to pinpoint the question-begging character of positivism.Footnote ¹⁴ Contrary to earlier critics of positivism, contemporary non-positivists ‘do not focus on the classical problem posed by a clash between positive law and natural, as epitomised in the Antigone story, to argue that the former is ultimately subject to an additional test of validity contained in higher morality’.Footnote ¹⁵

Instead, they appeal to an explanatory gap between social sources and legal obligations to demonstrate the question-begging character of positivism.Footnote ¹⁶ The charge they level at positivism is that it cannot bridge the gap between social sources and legal obligations, in order to explain how the latter obtain. The thrust of these strategies is an argument that law-practices cannot determine their own relevance to the content of legal obligations unless further elements are added. As the argument goes, there are multiple (epistemically) possible mappings from the social facts of law-practices to the content of legal obligations, the result being that what we know about the facts of the practice cannot settle which of the alternative candidate mappings from a set of social facts to possible meanings is actual.Footnote ¹⁷ This indeterminacy is then used as a reductio of the positivist notion of validity. Conversely, to counter the threat of indeterminacy the proposed solution is to supplement substantive moral principles which can determine the relevance of social facts and, thus, block the possible deviant mappings.Footnote ¹⁸

However, despite early appearances, the non-positivist strategy fails to set itself altogether free from the predicament of circularity, in the form of a commitment to law-practices at the most fundamental level of law-determination.Footnote ¹⁹ I will argue that the reason for that failure is closely tied to non-positivism’s reluctance to conceive of legal relations independently of law-practices and assign to them an autonomous role in the explanation of legal obligations (what I earlier called the ground-oriented reading of legal relations). As I will turn to demonstrate next, the dominant strand of non-positivism departs only marginally from the positivist understanding of legal obligation, by continuing to regard law-practices as necessary, albeit partial, grounds of all legal obligation.Footnote ²⁰ In effect, these non-positivists end up sharing the basic positivist premise which binds legal requirements to law practices, and merely supplement it with an additional premise requiring moral facts as additional grounds. While the adding of a moral component evades partially the charge of circularity in the explanation of obligations, it does not with respect to relations. For, in confirming the role of law-practices as necessary grounds of legal obligations such accounts also uphold the limited role of legal relations, which continue to appear as the shadows of institutional rules, incapable of materializing outside law-practices. Ultimately, as it turns out, the non-positivist idea of legal relations violates the neutrality constraint as much as its positivist counterpart.

To illustrate the point, think of the broadly Dworkinian strategyFootnote ²¹ of involving principles of political morality to ‘close’ the gap of indeterminacy that arises when social sources are considered as the exclusive determinants of legal obligations. Although involvement of moral considerations might be suitable for tackling indeterminacy, it does not cure circularity entirely. This is because, in any of the known renderings of the interpretivist strategy, the relevance of any pre-institutional moral considerations, appeal to which is rendered necessary for law-determination, is itself conditioned by the law-practices of some legal system. For, to specify in any given case whether and in what manner political morality is involved in law-determination, we need first to refer to the actions taken by legal institutions, including other relevant aspects of the law-practices of a legal system. Be it in terms of a demand for justification that those actions raise, or in terms of their normative footprint on the overall moral profile, these actions together with further aspects of law-practices determine the relevance and extent of the inclusion of moral facts in law-determination.

But this strategy is glaringly weak to escape circularity, if what is needed – when facts of law-practices are absent or cannot steer the explanation of legal obligations – are grounds whose existence does not rely directly on any law-practices.Footnote ²² For no sooner has our appeal to a moral principle of duty of care, which governs the relation between Ms Donoghue and the tortious manufacturer of ginger-beer, been framed by the law-practices of the system – say, the actions taken by the judges – than the relation between the parties fails to operate as an independent explanation.Footnote ²³ It is precisely because this strategy leaves no room for legal relations to operate as independent grounds for legal obligations that contemporary non-positivism ends up conceding the primacy of positivist ontology. By this I mean an account of legal obligations that is, at the most fundamental level, determined by law-practices or a collection of social facts that count as legal in virtue of a master rule of recognition.Footnote ²⁴

10.2.3 Legal Practice as Basic Structure of Governance

Although non-positivists disagree with positivists about the full range of facts contained in the grounding base of legal obligations, they seem to agree that law-practices form a necessary part of that base. How is this convergence of the two camps to be explained? Simplifying a lot, both camps think of law-practices as forming a basic structure of public governance (for short, basic structure), which we usually identify with the existence of law and political association. While the positivist account focuses on the description of the basic structure, what excites the non-positivist imagination is its normative impact on the reasons for action of those governed by it. Meanwhile, both approaches agree that the scope of all relations characterized in terms of legal rights and duties must be confined within the site of a basic structure of law-practices.Footnote ²⁵

As it turns out, the disagreement of the two camps is not about the site or the grounds of the basic structure; it is only about how (the site of) the basic structure contributes to the content of legal obligations. According to the non-positivist account, any determination of legal requirements that cites exclusively collections of facts in the basic structure would be incomplete. For, in virtue of imposing centrally terms of interaction on everyone living under it, the basic structure triggers the morality that regulates the governance of political association.Footnote ²⁶ Although not stated in so many words, an implied premise of the non-positivist line of argument seems to be that individuals are endowed with pre-institutional autonomy or freedom, which triggers a demand of justification, when impacted by the centrally imposed acts of governance of the basic structure. Notably, any such instance of interference with individual autonomy requires that one make additional reference to the justificatory grounds for the interference, in order to work out the obligations imposed by the basic structure. Such grounds consist in so-called principles of political morality (such as justice, fairness, due care, democracy, and so on) and are typically evoked to justify collectively distributed interferences with individual autonomy. Consequently, the way in which the basic structure of public governance contributes to the production of legal obligations is through its moral impact, that is, the way in which actions taken within its remit affect or modify the all-things-considered reasons that pertain to individuals.Footnote ²⁷

Notice, however, the modesty of the non-positivist argument: it draws attention to the relevance of political morality but does not challenge the site of its application. True enough, for any determination of legal rights and duties a contribution from political morality is necessary, but no legal relation can obtain outside the site of the basic structure, precisely because political morality cannot make any contribution to the determination of legal obligations outside that structure. The basic structure delineates the scope of legal relations because it marks the boundaries of the relevance of political morality. Outside the site of the structure, questions about whether some relation is legal or not do not even get off the ground.

Adding moral facts to law’s determinants amounts only to a modest modification of the positivist picture, making as a result contemporary non-positivist positions vulnerable to the same predicament of circularity that is endemic to positivist reasoning. Instead, to overcome these problems, a radical non-positivist strategy must overcome the straitjacket of positivist ontology, or the view that legal relations are limited by the site of the basic structure of law-practices.Footnote ²⁸ To do so, it must reverse the order of the inquiry by posing the question about the grounds of legal relations directly, and only after answering that question to proceed and specify their site. At the same time, a relations-first strategy would need to preserve the valuable intuition that not any moral facts, but only those that pertain to public forms of governance are relevant grounds for legal obligation.

But in the absence of a basic structure of public governance, how can relations trigger facts of political morality and together with them ground the kind of rights and duties that govern legal relations? I will argue in the next section that Kant’s Doctrine of Right provides us with a valuable insight:Footnote ²⁹ his Universal Principle of Right (UPR) may serve as the moral footprint of public governance, independently of the ontology of the specific structure that may exemplify it. As such it serves the role of a ‘compass’ for identifying as legal any relations which can trigger it. Accordingly, it takes the place of a formal ontology of governance and explains the idea of political association and public governance by imposing a threshold demand on interactions between agents: ‘any interaction that triggers UPR counts as an instance of public governance, which is accountable to principles of political morality’. The Kantian strategy, in refocusing the explanation from legal facts to rightful relations, gives explanatory priority to the grounds over the site of legal relations and thereby enables a radical form of non-positivism to take hold, which steers clear of the question-begging positivist ontology of legal relations. To that extent the Kantian legal relation paves the way to a relations-first and radical non-positivism.

10.3.1 The Relational Reading

Kant’s account of legal right centres on his Universal Principle of Right [UPR], which aims to explain legal obligations through the notion of rightful action conceived of in relational terms:

This makes UPR a direct account of legal relations which moves beyond both positivist accounts and those among the non-positivist accounts which rely for the explanation of legal rights and duties on the priority of a basic structure. With respect to positivism, UPR reverses the order of explanation between law-practices and legal relations, by opening the possibility of an explanation of legal obligations that dispenses with appeals to formally ordained legal sources qua necessary grounds. Meanwhile, against those non-positivist accounts that remain wedded to an institutional basic structure of governance, the Kantian UPR offers a way out of the priority of individual autonomy over omnilateral authorization, which otherwise would require a reference to law-practices and the state. I turn next to discuss each of these contributions. Taken together they encourage a full-blown turn to a relations-first account of law.

10.3.2 The Quasi-Lockean Reading

The defended reading of Kantian right clashes with a standard interpretation, which for expository reasons I shall label ‘quasi-Lockean’. On this standard reading, independence is grounded in a pre-institutional principle of individual autonomy, which partly overlaps with Kant’s idea of innate right (IR):

This reading affirms the priority of individual autonomy qua IR and seeks to understand UPR’s relational account of right as derivative. However, in its more sophisticated version, the quasi-Lockean reading introduces an interpersonal dimension to Kantian independence by suggesting that, although grounded in an absolute innate right, it cannot materialize independently of the public institutions of a political community.

To understand why, one must appreciate that pre-institutional autonomy is merely provisional. In contrast, for a full enjoyment of independence persons must acquire conclusive property titles in the material means of their actions. This requirement, eloquently defended by Arthur Ripstein in recent years, relies on an understanding of action whereby securing the means is conceptually prior to setting the ends of the action. To that extent, setting the ends of one’s action independently of the choice of others would require having secured the relevant means: ‘I can choose to Φ only if I can set about doing Φ, which requires that I have a right in the means that enable me to Φ.’Footnote ³⁹ Accordingly, the negation of independence is a state of affairs in which others are equally entitled, in virtue of their innate right, to use the same means when they come to physical possession of them. Importantly, independence breaks down because any act based on the provisional entitlements of each is rendered an instance of unilateral coercion towards others.

This understanding of action, and the idea of independence that informs it, considers conclusive property titles as enabling the independence of an actor because they alone can ground legitimate exclusion of others from the means of her action. The condition of legitimacy requires in turn a system of public law which finalizes provisional entitlements and enforces them in an omnilateral manner, namely, in the name of all those who belong to the same political community. To that extent, pre-institutional individual autonomy (innate right) plays the role of a background structuring ground of legal relations, which however can only be fully constituted by the public institutions of state-based law.Footnote ⁴⁰ Thus, we read in Ripstein: ‘People are entitled to independence simply because they are persons capable of setting their own purposes.’Footnote ⁴¹ And elsewhere, ‘the consistent exercise of the right to freedom by a plurality of persons cannot be conceived apart from a public legal order’.Footnote ⁴² Taken together, these statements amount to the standard liberal understanding of independence and freedom, according to which law is a legitimate external constraint on a pre-existing, unconstrained notion of individual autonomy.Footnote ⁴³

10.3.3 The Rejection of the Quasi-Lockean Reading

Appealing as it might appear at first sight, the standard reading struggles to withstand closer scrutiny, as recent work has suggested. For, it seems to subsist on a mischaracterization of the relation between the two central principles of Kant’s account of legal rights, namely, the UPR (universal principle of right) and IR (innate right). In contrast to the relational reading defended earlier, the standard reading suggests that individual autonomy operates as an antecedent ground of independence which does not rely on the juridical relations between parties. Accordingly, a key strategy for resisting this move requires the inversion of the explanatory priority between the two principles, as I read Katrin Flikschuh to suggest in recent work.Footnote ⁴⁴

On her proposal, UPR subjects the interacting parties to standards that secure the consistency of the action of each with the independence of everyone else. Meanwhile, innate right does not constitute an additional ground of UPR or the relation it specifies, but merely announces or summarizes the moral status enjoyed by anyone who is subject to the requirements of UPR, namely, the status of an agent as independent of the choice of others, because everyone is under an obligation of acting on principles that secure consistency with each other’s independence. Providing ample textual evidence, Flikschuh argues convincingly that UPR specifies the central moral relation in Kant’s account of legal rights, while innate right captures the moral status that pertains to anyone who stands in that moral relation.Footnote ⁴⁵ Accordingly, the general concept of right pertains to a ‘formal, external, strictly reciprocal moral relation’:

Flikschuh’s reconstruction consolidates a reading of Kantian right that moves away from the quasi-Lockean picture and closer to the relational reading that was defended earlier: on the standard view independent persons are understood as ‘each [having] an equal right to exercise [their] power of choice consistently with everyone else having an equal such right’.Footnote ⁴⁷ Conversely, her reading highlights the constitutive role of UPR for independent action: ‘each has a right to being treated by all others as someone who is capable of right action’,Footnote ⁴⁸ in a manner that supports the relations-first reading of Kantian right.

Another notable account that underscores the constitutive priority of UPR over IR has been recently advanced by Rafeeq Hasan and Martin Stone.Footnote ⁴⁹ On this proposal, what distinguishes juridical right within Kant’s division of morality is its provisionality. Importantly, this property grounds a conceptual link between pre-relational entitlements (including innate right) and their fully realized instantiations (as specified by UPR), because a complete explanation of anything that is provisional must involve as ground the conditions of its possibility: ‘provisional right expresses the intrinsic connection between rightful relations and political association by marking the defective character of rights where a state is absent’.Footnote ⁵⁰ Ultimately, on their account, UPR ‘grounds and unifies the domain of juridical principles by exhibiting them as stages of its own explication’.Footnote ⁵¹ Here, as with Flikschuh earlier, the provisionality account vindicates a relational reading of Kantian right, which takes the ultimate ground of independence to be the relation in UPR rather than some self-standing notion of individual autonomy (which in the authors’ account can only be thought of as provisional).

Both these accounts cast serious doubt on the quasi-Lockean reading of Kantian right.Footnote ⁵² Importantly, they identify and remove the misconceived priority of IR over UPR in the explanation of Kantian freedom as independence, which was responsible for demoting legal relations to tools for ‘realizing’ antecedent claims of individual autonomy. In contrast, when the order of explanatory priority between UPR and IR is restored, a compelling new understanding emerges of the relation between rights and legal relations: rights are then grounded in the relation specified by UPR, the legal relation. In this context innate right functions merely as a signpost for the moral status of each of the interacting persons, once they are parties to legal relations.

10.3.4 The Publicity of Legal Relations

Despite the progress made by recent defenders of relational strategies of Kantian right, there remains a key difference from the version put forward in this chapter, whose identification will help us consolidate the possibility of a relations-first or radical non-positivism. Both the account of Flikschuh and the provisionalist one read Kant’s universal principle of right [UPR] as necessitating the existence of a basic structure of legal institutions [basic structure].Footnote ⁵³ In doing so they hold juridical relations to be constitutively dependent on the law-practices of the basic structure.Footnote ⁵⁴

This belief is equally shared by the quasi-Lockean reading of Kant but also other moderate versions of non-positivism, as previously indicated. In these accounts the basic structure is a means for evoking a collective ‘we’-agent, on whose name pre-political individual claims can become binding on others.Footnote ⁵⁵ While the significance of omnilateral justification and the institutions that procure it is obvious for modest non-positivists, it is less clear why a relational account (including those of Flikschuh and the provisionalists) should commit to them. I turn next to two reasons why a relational reading of Kantian right does not necessitate the presence of a basic structure in its explanation of legal relations.

To begin with, any retreat to the basic structure would struggle to account for legal relations as an independent explanatory tool in line with the phenomenology of legal practice.Footnote ⁵⁶ In particular, making reference to the basic structure, qua necessary ground of legal obligations, would revive the problem of circularity that we encountered in positivist accounts of law. Meanwhile, if the requirements of juridical relations are ultimately grounded in institutional sources, then a fresh need to appeal to pre-institutional considerations would arise, in order to counter the indeterminacy of institutional sources.Footnote ⁵⁷

The second reason is deeper and demonstrates why the relational reading of Kantian right is uniquely suited to vindicate the possibility of radical positivism. It points at the redundancy of state law in the context of the relational reading: why turn to law-practices to establish the inter-personal or public dimension of juridical demands if we have already established that the pre-institutional grounds of legal relations are public? Recall our earlier discussion of freedom as independence. Freedom as independence is premised on a particular kind of interdependence from others: one obtaining when each of the interacting parties is acting with a view to the freedom of everyone else. If that is the kind of demand that is grounded by the UPR, then why appeal to an additional source of publicity?

To put it differently, the question of publicity arises about the range of those who can partake in relations of independence. It asks: ‘who can be included in the scope of collectives whose members act on demands that help each to act consistently with the freedom of others?’ It was demonstrated earlier that a typical route for answering this question looks to identify a ‘collective’ agent in whose name the said demands can become binding for all those involved. But there is no symmetric demand to resort to an institutional public structure once we have adopted the relational interpretation of legal rights. For, the UPR bestows on juridical demands a public dimension in virtue of recommending them ‘in the name of’ all those who are parties to the relation.Footnote ⁵⁸ It does so because the demands of independence stipulated by UPR define those requirements as the features of a pattern of interaction whose subject is the joint agent made up by everyone who is under the general, abstract obligation to interact with others in a freedom-consistent manner.Footnote ⁵⁹

But perhaps one might object that a more precise understanding of the omnilateral scope of UPR is needed, for the reason that by removing altogether institutions as necessary grounds of legal relations, we also remove the possibility of accounting for the scope of legal relations through the idea of an omnilateral we-subject. For, that possibility would ultimately require a scaffolding enabling the interpersonal relevance of a domain of interactions. Here the issue is not one of (omnilateral) justification, but the simpler and more basic one about the boundaries and relevance of the legal domain.

To this we must reply by looking closer at how ‘omnilaterality’, qua joint authorship of standards of rightful action, is already incorporated in the normative meaning of UPR. Key in this context is to realize that publicity is part of the practical necessity of UPR: the Kantian principle, in virtue of constituting independence, involves a notion of universalization which is specific to independence. When UPR enjoins ‘according to a universal law’ the stated universality is not the universality of autonomy (as affirmed by the categorial imperative) but the universality of independence, which, I would like to suggest, involves omnilaterality.Footnote ⁶⁰ This is a robust claim whose full demonstration would have to wait for a future occasion. Within the confines of this short chapter, I can only limit myself to a sketchy demonstration. To reflect on the separateness of the universalization that pertains to independence, just think that many of the maxims that would pass the test of universalization under the categorical imperative may fail under the test of independence.Footnote ⁶¹ In other words, the set of valid moral maxims of autonomy is not coextensive with the set of maxims of independence. That much might already be familiar and not terribly surprising. My further suggestion is that the universal test of independence is that of omnilaterality: only omnilateral maxims can pass it. Here is an example:Footnote ⁶² I am standing in a room with others and there is only one chair. Striving toward autonomy, I act on the maxim: ‘occupy chair’. I think this is perfectly consistent with the demands of autonomous agency. But it would, arguably, fail on the demands of independence, precisely because it fails to ground a rightful course of action (i.e. if abided by, it would violate independent interaction among those present in the room). In its stead, a different maxim is in the offing that would enable each one of us in the same room to engage in patterns of action consistent with the freedom of everyone else; perhaps something like ‘occupy chair, unless occupied’; or even better, ‘occupy chair, consistently with the freedom of others’.

I suggest that omnilaterality is this version of universalization that considers (explicitly) the freedom of others, and as a result cares for maxims that require from a plurality of persons to act as an interdependent or omnilateral subject.Footnote ⁶³ If this is not an outlandish suggestion, then omnilaterality and freedom as independence turn out to be co-original. And the Universal Principle of Right, as a pre-institutional moral standard, comes out as constitutive of both.

Where does this leave us? In contrast to the liberal reading, legal rights are not antecedent entitlements that need to be mutually reconciled within an institutional matrix that is acceptable to all. Legal rights, on the relational reading, are grounded from the outset on the interpersonal normative demands of the legal relation.Footnote ⁶⁴ Although a more detailed analysis of these demands escapes the confines of this chapter, they will typically include a principle of fair distribution and a collective duty of care, alongside the class of responsibilities that apply reciprocally to each party to avoid engaging in wrongdoing and other pro tanto unjustifiable acts that one person might commit against another on a particular occasion.Footnote ⁶⁵ Taken together these standards formulate the central qualitative features of patterns of action through which each of the parties to the legal relation acts consistently with the principled actions of the others.Footnote ⁶⁶ Acting on such patterns safeguards the distinctness between personsFootnote ⁶⁷ among pluralities of interacting agents, each of whom is typically in the pursuit of separate systems of ends.

11.3.1 The Argument for the State without the Postulate

With this in mind, we can turn to the first of the three problems that Ripstein’s use of the normative conception of freedom faces. Recall that the normative conception of freedom does not support the claim that a system of rights in which external objects of choice may not be owned has any less freedom than a system of rights in which they may be owned. Neither system denies anyone anything that is theirs. Since, in Kant’s view, securing the possibility of property rights provides the reason for establishing the state, this is a serious problem for that argument. I believe, however, that the basic structure of Kant’s argument for the state can be successfully repurposed by focusing on bodily rights rather than property rights. I have developed this argument at length elsewhere.Footnote ²⁶ Here I briefly rehearse this argument, which has two steps. Kant seems to assume implicitly that one has a right to one’s body. The first step in my argument involves motivating this claim. Next, I show that bodily rights are subject to problems that largely parallel the problems faced by property rights in the state of nature. They can thus be used to justify establishing the state without relying on the Postulate.

Let us consider each of these steps in turn. Recall that the basic problem faced by the normative conception of freedom is that a conception of freedom as having effective rights does not tell us what rights people have (or, alternatively, identify the means over which they should have effective control). In one way, the right to one’s body is no exception – it would be a mistake to say that we would be less free without rights to our bodies. In another way, however, the right to one’s body occupies a special place in a scheme of rights. We must attribute bodily rights to people in order for the idea of external freedom to have application. You cannot have effective control over anything if you do not have effective control over yourself. And since we are embodied beings that requires effective control over your body.

Notice that this is not just the claim that your body is your most basic means, though that is true. The important point is rather that in order for you to show up in my practical reasoning as the kind of being to whom things can belong, you must belong to yourself. If you are simply among my potential means, anything that is ‘yours’ is really mine. In order to not simply be among my potential means, you must have rights against my use.

I take the foregoing to establish that we must have bodily rights if we are to have any rights at all. But this does not yet settle what bodily rights we must have. There are differing views about how indeterminate bodily rights are in the state of nature. Ripstein often seems to take them to be all but settled. But there are some aspects of bodily rights that are undoubtedly indeterminate in the state of nature. One of Ripstein’s own examples suggests this:

Does shouting in this context constitute a violation of one’s bodily rights? How loud is too loud? What circumstances are too dangerous for shouting? Reason alone does not settle precise answers to these questions. This suggests that bodily rights are at least in some respects indeterminate. Moreover, for the purposes of the argument that follows, it would be fine if bodily rights were completely indeterminate in the state of nature. For this reason, I am largely going to set aside the question of how indeterminate bodily rights are, though I will return briefly to this issue in Section 11.3.2 after the argument for the state has been laid out.

I take indeterminacy to be the basic problem in the state of nature. This contrasts with Ripstein’s position, which begins with the problem of unilateralism.Footnote ²⁸ Ripstein takes it that the basic problem with property rights in the state of nature is that we cannot unilaterally impose duties on others and hence cannot unilaterally claim property rights. I, however, argue that the reason we cannot unilaterally impose duties on others in the state of nature is that the indeterminacy in the rights correlative to those duties is not something we are unilaterally entitled to settle. Why not? A unilateral right to settle indeterminacy would be in tension with the innate right to freedom’s requirement that rights be universal. I take this requirement to imply that we must all have the same rights prior to any exercise of those rights. This is the truth in Kant’s claim that the innate right to freedom involves a conception of innate equality, that is, ‘independence from being bound by others to more than one can in turn bind them’.Footnote ²⁹ For this reason, the right to settle the indeterminacy of bodily rights is not one any individual can claim for him- or herself alone.Footnote ³⁰ This means that this right is one that we must all share. And that is something we can only do via a decision-making procedure that unites us.

Bodily rights also give rise to problems of adjudication and assurance. Consider first the problem of adjudication. Even if we settle principles determining the content of bodily rights, no one can have a unilateral right to settle disputes over the application of those principles. Likewise, unilateral assurance that others will respect our bodily rights falls short of the kind of security that innate right demands that we have.Footnote ³¹ With this brief characterization of how bodily rights give rise to problems that parallel the problems Kant attributes to property rights in the state of nature in view, we can construct an argument for the state that takes bodily rights rather than property rights as its starting point:

1. (1) The innate right to freedom requires bodily rights.

1. (2) Bodily rights are subject to indeterminacy, adjudication, and assurance problems in the state of nature.

1. (3) These problems can be resolved in a way that is consistent with the innate right to freedom only in a properly constituted state.

1. (4) Therefore, the innate right to freedom requires the establishment of a properly constituted state.

We have already seen that premise (1) requires care in its interpretation. The innate right to freedom requires bodily rights not because we would be less free without bodily rights but because the idea of freedom would lack application without those rights. And although the indeterminacy problem referenced in premise (2) may be interpreted in more or less expansive ways, any interpretation will suffice for the argument. Finally, the foregoing discussion has brought us most of the way to premise (3). Each of the three problems finds its solution in a branch of the government – the indeterminacy problem in the legislative branch, the adjudication problem in the judicial branch, and the assurance problem in the executive branch. Of course, a full defence of premise (3) would require a much closer examination of each of these three branches of government and the way in which they solve the corresponding problem from the state of nature. Although I cannot undertake that full defence here, I draw out some important features of the legislative branch in the next section. For now, however, this should suffice to show how the normative conception of freedom can support an argument for the state. There are three key moves in this argument. First, this argument bypasses the problematic Postulate and focuses instead on bodily rights. Second, the argument treats bodily rights as a precondition for freedom rather than as increasing freedom. And, finally, the argument treats the problems faced by bodily rights in the state of nature as stemming from the innate right to freedom’s demand that rights be universal. Thus, the heavy lifting in the argument is done not by the mere concept of freedom but rather by the innate right to freedom in accordance with a universal law.

11.3.2 Constraints on the State

Recall that the second problem faced by Ripstein’s use of the normative conception of freedom is that it is unclear how that conception places any constraints on the state. As Ebels-Duggan puts it, ‘the notion of freedom receives determinate content only from the very institutions for which it is supposed to provide a normative standard’.Footnote ³² One initial reply involves clarifying that the notion of freedom alone is not supposed to provide a normative standard for the state. Rather, as we have just seen, the standard is provided by the innate right to freedom and the demand for universalizability which that includes. The general question, however, remains. If freedom just consists in having effective rights, how can a right to freedom in that sense constrain the organization of the state or the laws that it enacts? I am going to begin by considering the organization of the state and that will lead us naturally to a discussion of particular laws.

Ripstein claims: ‘All that is required for the legislative will to be omnilateral is for the distinction between public and private purposes to apply to it in the right way … the only public purpose that is relevant is the public purpose of creating and sustaining a rightful condition.’Footnote ³³ He then compares the relationship between public officials and citizens to the relationship between trustees and those with whose affairs they have been entrusted. He indicates that a trustee must act to ensure the ongoing purposiveness of the one for whom arrangements are being made and a trustee is precluded from making those arrangements for his own private purposes. Moreover, ‘[e]ven the power to ensure the ongoing purposiveness of another person can only be exercised on terms to which that person could consent’.Footnote ³⁴ Since people cannot consent to slavery or to forfeiting the innate right to freedom, certain institutions that may superficially resemble states do not qualify as embodying an omnilateral will. Ripstein treats Nazi Germany as an apt example of an entity that fails to embody an omnilateral will in this way.Footnote ³⁵

Ruling out Nazi Germany is not nothing, but it is still less than one might hope for. In particular, nothing in this line of argument requires anything like democratic governance. Readers of Kant will not find this surprising. Kant’s discussions of democracy are a bit muddled and sometimes express a somewhat negative attitude towards that organizational form.Footnote ³⁶ What is important for both Kant and Ripstein is that the people be represented by the legislative branch of government. But that is consistent with playing no actual role in decision-making.

We should pause here, however, to question why we should accept Ripstein’s characterization of an omnilateral will solely in terms of the purposes it pursues. Ripstein suggests that:

But to begin simply making laws is to claim for oneself a right that all others cannot have. In contrast, if I begin to act as if we all share legislative authority, I claim for myself only the same right that I also attribute to you. In this way, democratic decision-making procedures alone reflect the kind of formal equality that universalizability demands.

For this reason, I take it that in a legitimate state the ultimate legislative authority must be literally held by the people collectively. This is not merely an idea of reason. Nevertheless, on this view the distinction between public and private purposes remains significant. The people have a collective right to settle the indeterminacy problem. To undertake any other task like, say, maximizing welfare or supporting the development of virtue, would take the legislative body outside its mandate. Thus, just as Ripstein claims, state officials must act for the public purpose of establishing a rightful condition. My claim has simply been that a legitimate state is one in which all citizens hold the office of legislator.

To be clear, the requirement that ultimate legislative authority be held by citizens collectively is still compatible with very different forms of governance. The people might legislate directly or via chosen representatives, who might be numerous or even just a single individual. Although such elected officials would have rights that not all have, these rights would be bestowed on them through the exercise of rights held by everyone and thus in a way that respects the innate equality that is an aspect of the innate right to freedom.

But even if most actual legislating is done by representatives, the fact that the ultimate legislative authority is held by citizens has far-reaching implications for the constitution of a legitimate state. Whatever indeterminacy there is in the state of nature must be settled in a way that enables citizens to satisfy the duties of their offices as legislators. Although a full discussion of what this entails is far beyond the scope of this chapter, I will briefly gesture towards two broad sets of constitutional provisions that are suggested by this requirement. First, the familiar liberties of speech, conscience, and association may each be thought to play an indispensable role in enabling citizens to fulfil their duties as legislators. Without these liberties, citizens would be unable to think for themselves and together in the ways required by their offices. Second, consider the resources needed for decision-making. Human bodies need food, water, and shelter to do anything at all, including legislating. Any settlement of the indeterminacy problem that left citizens without access to these resources would be inconsistent with enabling them to do their jobs as legislators and hence inconsistent with the only organizational form permitted by the innate right to freedom.Footnote ³⁸

This brief list of constraints on a legitimate constitution is not meant to be exhaustive. I mean here only to highlight how the innate right to freedom’s requirement that citizens hold the ultimate legislative authority may yield such constraints even if the content of freedom is otherwise indeterminate in the state of nature. With this picture in view, we may turn to how these constitutional constraints shape the task of legislators. Legislators are tasked with settling on a specific scheme of rights. The constitutional constraints I have just discussed mean that not just any assignment of rights will do to resolve the indeterminacy problem in a way that is consistent with the innate right to freedom. Legislators must therefore engage in two somewhat different activities when they pass laws: checking potential laws for consistency with the constitutional constraints and choosing among the potential laws that survive this initial scrutiny. For example, the constitutional imperative that citizens qua legislators must have access to food, water, and shelter does not by itself distinguish among subsidizing those who are impoverished, providing a universal basic income, having the state stand as an employer of last resort, or some other organizational scheme directed at the same end. Of course, there may ultimately be public considerations that weigh in favour of one of these rather than another. It may be, for example, that some schemes of rights minimize the chance of misapplication or corruption of the law. Or it may be that some schemes of rights are more conducive to a state’s stability over time. These, then, are the challenging issues that legislators are called on to evaluate or to elect representatives to evaluate in their place.

In this section, I have argued (1) that the innate right to freedom requires democratic governance, (2) that that entails certain constitutional requirements, and (3) that those constitutional requirements in turn constrain the laws legislators enact. Before closing this section, it may be helpful to contrast my argumentative strategy on a particular matter of law with Kant’s own. He attributes to the state a right to tax citizens to provide sustenance for those who are unable to provide for themselves on the basis of the state’s end of maintaining itself perpetually. It is, however, not clear from Kant’s text why sustaining those who are impoverished is necessary for the state to maintain itself.Footnote ³⁹ Ripstein argues that the state must provide for those who are impoverished in order to prevent them from falling into a condition of dependence that is inconsistent with the idea of sharing in a united will: ‘a social world in which one person has the rightful power of life and death over another is inconsistent with those persons sharing a united will, even if the situation came about through a series of private transactions in which neither did the other wrong’.Footnote ⁴⁰ As I indicated above, if there were no constraints on how I interacted with your body, you would be merely a means to me, and I agree that this precludes the possibility of uniting our wills. But the situation Ripstein is envisioning is not one in which individuals lack bodily rights altogether. Those who are rich still may not assault those who are poor. Since freedom just consists in having effective control over one’s means and you may be secure in the very limited means you have, for all that has been said this still seems to be a condition in which we are both free.Footnote ⁴¹ It is therefore unclear what precludes conceiving of our wills as united in a state that allows me to have so much and you to have so little.

The problem here is, as it was before, treating the idea of a united will as a mere idea of reason. In contrast, since I hold that citizens must literally share legislative authority, my view has the resources to explain a very different way in which the requirement that citizens have access to the resources needed to meet their basic needs follows from the state’s end of maintaining itself perpetually.Footnote ⁴² I doubt that this is what Kant had in mind himself. My argument also potentially goes further than requiring the kind of poverty relief Kant envisioned as the resources needed to enable citizens to satisfy their duties as legislators may outstrip those needed for sustenance. It may be, for example, that this same style of argument can be used to ground a requirement that citizens have access to the kind of education needed to satisfy these duties. In this way, although my argument begins with Kantian commitments, it has the potential to justify more far-reaching required state action than Kant himself envisioned.

11.3.3 Public Roads

This brings us directly to the final problem facing Ripstein’s use of the normative conception of freedom. His attempt to argue that the state is required to establish public roads is unsuccessful. The normative conception of external freedom makes it difficult to see how the neighbours who block you in infringe your freedom. You are still free to control the means that are yours and to associate with anyone you choose. Your neighbours simply decline to provide you with the means needed to contact those with whom you wish to associate.

My argument suggests a different basis for a state’s duty to provide public roads. Citizens qua legislators must be able to discuss matters of state together in order to satisfy the duties of their office. For example, they must be able to discuss whether various schemes of rights are consistent with ensuring that citizens have access to the resources needed to sustain themselves in a condition that enables them to satisfy the duties of their office. They must be able to disseminate information about the implementation and effects of existing laws. They must be able to exchange information about the conduct of elected representatives. And so on. Democratic governance requires open avenues of communication. And notice that what this requires in practice may depend on the particular society in question. In addition to public roads, the state may need to fund a postal service or public internet connections.

Moreover, citizens have to be able to reach the resources they need to sustain themselves adequately. They do not actually have effective access to food if they cannot get to the grocery store. Likewise, access to education requires effective access to schools and the like. Here again, there are potentially many ways of settling rights that might be compatible with the innate right to freedom. But given certain ways of setting up access to the resources that citizens need, the state may be required to go beyond merely providing public roads and to provide public transportation as well.

This discussion has necessarily been rather schematic. Full consideration of any of the potential state programmes discussed in this section would require detailed consideration of the scheme of rights in which the programme is supposed to be embedded. The demands on the state to provide public services may differ considerably against the backdrop of different economic systems. Here I simply want to draw out the way in which the demand that citizens be equipped to carry out their legislative duties puts pressure on the systems of rights states may enact consistently with the innate right to freedom. This pressure potentially provides the argumentative basis not just for public roads but for much else besides.