12.1 Introduction
If scholars of Kant’s political philosophy agree on anything (and it is not clear that they do), it is (1) that Kant political philosophy is a doctrine of ‘external freedom’.Footnote 1 If they agree on two further things, they are (2) that external freedom is a univocal notion in Kant’s political philosophy, and (3) that, though there may be connections between moral and political freedom, Kant emphasizes the latter’s externality to signal clearly that autonomy (often associated with internal freedomFootnote 2) is not the freedom concept central to his political thought.Footnote 3 Despite agreeing that Kant’s treatment of external freedom is unambiguous and that it is sharply distinct from autonomy, it is a striking fact that commentators disagree (sometimes without noticing) about what exactly external freedom is.
On the classic view, especially popular in German accounts of Kant’s political philosophy, external freedom consists in free choice simpliciter, without regard for its determining grounds.Footnote 4 Newer, especially anglophone, work emphasizes the republican idea that you are (externally) free just in case you are your own master. For some Kantian republicans, you are your own master, in turn, provided you are free to use your means for your (external) purposes without anyone else’s say-so.Footnote 5 Others understand republican self-mastery in terms of ‘capacity to make choices independently of constraint by the choices of others’.Footnote 6 Though intended to be compatible with these republican ideas, some characterize external freedom instead as the ability to move about in space.Footnote 7 On these pictures, the Rechtslehre is designed to discover those institutions (e.g. property schemes) that maximize such an ability. Still others take it that Kant’s ‘clearest statement’Footnote 8 of external freedom marks it out as a second-personal ‘title’ not to be dependent on the will of any other – a title fully realized only insofar as each person’s will is dependent upon positive law.Footnote 9 So understood, external freedom specifies an ‘irreducibly relational norm, linking the right of one agent to the duty of another’ – which means that there is no purely individual capacity for external freedom that can be cashed out in terms of deploying means, setting ends, or moving through space.Footnote 10
Though related (and often self-consciously so), it is implausible that these views come to the same thing. Rather, we should see in these formulations subtle disagreement about the meaning of ‘external freedom’ in Kant’s politics. Interpretative disagreement like this is common enough in philosophy and can have many sources (misreadings, misunderstandings, missed context, logical error, different emphasis, different aims, and so on). But I submit that disagreements concerning external freedom have their source in the Kantian texts themselves. Against what the standard view suggests, Kant’s Rechtslehre treats at least two distinct notions of freedom, each of which has a clear claim to the title ‘external freedom’. This fact has not always been clearly recognized in the scholarly literature (though scholars are usually at least inchoately aware that there are distinct notions and tacitly switch between them in their analyses).
The purpose of this chapter is to do what others have not: carefully and explicitly mark external freedom’s distinct meanings (Section 12.2). While this exercise may seem pedantic at times, stressing this distinction will put pressure on the claim, (3), that autonomy fades from relevance when Kant’s attention turns to politics. Whereas others have wondered why a philosopher concerned with autonomy would make such a big deal out of external freedom, I argue that this question rests on a false premise. If autonomy is the property of our will according to which we are subject only to those normative constraints that we ourselves legislate, political principles treat what seems on its face like an affront to autonomy: normative constraints grounded in another’s power of choice (Section 12.3). Kant’s political philosophy aims to show that, under certain conditions, such alien constraints are grounded in a principle of authority that we legislate ourselves, and so are, in the end, consistent with autonomy. Or so I argue below, closing my argument by considering a pair of objections (Section 12.4) and ending the chapter with a brief concluding section (Section 12.5).
12.2 Kantian Freedom
Before beginning, it is useful to rehearse some details about how Kant thinks about freedom across his corpus. As may by now be familiar, Kant accepts a generic negative notion of freedom, understood as independence (Unabhängigkeit), alongside a generic positive notion of freedom, understood as capacity (Vermögen). The negative theoretical notion of freedom is independence from determination by prior causes (KrV A446/474; A447/B475), whereas the positive theoretical notion of freedom is the capacity to initiate a series of causes (KrV A445/B473, A448/B476).Footnote 11 The negative practical notion of freedom is the independence of the human power of choice from determination by prior sensible impulse (e.g. inclination) (KrV A802/B830, GMS 4:446), whereas the positive practical notion of freedom is the capacity of reason to determine practically the power of choice to action (KpV 5:33).
When it comes to external freedom, then, we should expect Kant to offer a negative characterization (independence), followed by a positive characterization (capacity). These expectations are in part supported by the way Kant describes our innate right to freedom: the (negative) independence (Unabhängigkeit) of each from the constraining choice of every other, so far as it is compatible with everyone’s freedom under universal law (MS 6:237). But unlike in the theoretical and practical cases, Kant offers no corresponding positive characterization.Footnote 12 Moreover, the kind of freedom described in our innate right is not the only claimant for the title external freedom.
Indeed, Kant makes clear early and often that the Rechtslehre concerns only ‘freedom in the external use of choice’ (Freiheit in dem ‘äußeren Gebrauche der Willkür’), rather than freedom in the internal use of choice (MS 6:220). Relatedly, principles of right govern only ‘the external and indeed practical relation of one person to another, insofar as their actions, as facts, can have (direct or indirect) influence on each other’ (MS 6:230). As Kant tells us, ‘anyone can be free’ in the sense relevant to Right ‘as long as I do not impair his freedom by my external action’ (MS 6:231). These remarks direct us to look for one notion of external freedom as a capacity – one that allows us to interfere with others through outer actions – and a second notion of external freedom as norm, proscribing certain uses of that capacity.Footnote 13 I submit that freedom in the external use of choice offers Kant’s account of the first notion; the right to freedom as independence, the second.Footnote 14 Let us treat each in turn.
12.2.1 External Freedom as Capacity
To understand what Kant means by freedom in the external use of choice, it is natural to begin with Kant’s notion of choice (Willkür), abstracting from its various use cases. In Kant’s metaphysics of action, choice is an aspect of the capacity of desire. Specifically, choice is the capacity for doing as one pleases, insofar as one is conscious ‘of the capacity to bring about [one’s desired] object by one’s action’ (MS 6:213). So understood, choice plays a crucial role in Kant’s broader action theory, which distinguishes between determining grounds of choice and objects of choice. Understanding these related notions, I argue, yields an attractive distinction between internal and external uses of choice.
12.2.1.1 Determining Grounds of Choice
In the Groundwork Kant argues that, in addition to being subject to rational norms, human beings are sensible creatures with inclinations. By the time he writes the Metaphysics of Morals, Kant distinguishes clearly between two grounds capable of determining choice: rational incentives (which proceed from the will (Wille) as practical reason), and pathological incentives (which proceed from sensibility).Footnote 15 Incentives of both kinds partially explain why we prefer to do this, rather than that, when we choose. For instance: I determine my power of choice by means of rational incentives when, for example, I determine that I will not steal because I recognize that it is wrong to do so (categorical imperative) or that I will keep to my exercise regime because prudence demands it (hypothetical imperative). By contrast, I determine it by means of pathological incentives, for example, when omit to steal because I see a camera hovering over the goods I covet or when I impulsively sneak a dram during an allegedly dry January.
The distinction between types of determining grounds explains why Kant treats choice, but not the will, as characteristically free. While the human will (Wille) necessarily furnishes rational laws of freedom as grounds capable of determining choice, we can determine our power of choice with respect to these laws or incentives drawn from sensibility. These determining grounds relate to freedom in the following way. Choice is negatively free because it is not inescapably determined by sensible impulses. We achieve positive freedom of choice when we determine ourselves to act on the basis of the dictates of our rational wills (MS 6:226). Because it has access to rational determining grounds, our power of choice is necessarily negatively free. Our Willkür is not inescapably determined by sensible impulse. Yet we only contingently determine our powers of choice itself on these rational grounds. Determining ourselves to act according to rational principles against the pull of sensibility is a demanding business. Negative freedom is constitutive of human agency; positive freedom, in the sense of determining our powers by rational determining grounds, is an achievement.
Some suppose that the distinction between ‘inner’ and ‘outer’ uses of choice is just the difference between Wille (inner) and Willkür (outer).Footnote 16 But this cannot be. Kant speaks of the ‘äußeren oder inneren Gebrauche der Willkür’ (MS 6:214), not ‘äußeren Gebrauche der Willkür’ and ‘inneren Gebrauche des Willens’.Footnote 17 It is, I think, more promising to locate the difference Kant actually marks in his treatment of objects, rather than determining grounds, of choice, as I now argue.
12.2.1.2 Objects of Choice
Whereas a determining ground of choice is that incentive by which we determine choice (e.g. fear of punishment or respect for the moral law), an object of choice is that at which choice aims. More simply, the object of one’s choosing is that which one aims to affect, shape, or bring about through choice.Footnote 18
Now, Kant explicitly observes that our power of choice can aim at external objects. Among the explicitly classified external objects, Kant counts corporeal objects (including land, corporeal things, and others’ bodies; others’ services through contract; and certain status relations with respect to others).Footnote 19 I want to suggest that to use choice externally just is to direct it to external objects. If this is right and the difference between internal and external uses of choice is supposed to be grounded in the different kinds of objects (inner and outer) that choice can take up, then we must search for some class of internal objects.Footnote 20
This is harder work, for Kant does not provide a taxonomy of internal objects (as he does with external objects). Still, he does offer some clues in the way he describes internal or ‘inner’ actions (the result of exercises of choice in its internal use). For example, he claims that to set an end is ‘an internal act of the mind’ (MS 6:329, emphasis added). Moreover, he suggests that the contrast class to external actions (presumably internal actions) involves adopting maxims and principles. For instance, if I make the Universal Principle of Right (UPR) ‘the principle of my action’, this is an internal rather than an external act (and a matter for internal rather than external lawgiving). In addition, Kant characterizes the modulation of our attitudes as consisting in internal acts. After all, when I wish ‘to infringe upon your freedom’, or am ‘indifferent to it’, these are internal, rather than external, matters (see again MS 6:231).Footnote 21 Finally, whereas the Rechtslehre ‘dealt only with the formal condition of outer freedom […] ethics goes beyond this and provides a matter (an object of free choice), an end of pure reason that it presents as an end which is also objectively necessary’ (MS 6:380). In simpler terms, whereas right leaves our internal ends up to us, ethics prescribes an end ‘it is a duty to have’ (ibid.). We comply with this duty by exercising inner freedom, taking as our object of choice the relevant end.Footnote 22
These passages suggest the following picture. Since (1) objects of choice are those things we aim to affect or bring about by means of the exercise of choice, and (2) we set ends, adjust attitudes, and adopt maxims (MS 6:225) by exercising internal freedom, it is reasonable to infer that (3) objects of an agent’s internal choice are (perhaps among other things) ends, maxims, attitudes, and other mental items.Footnote 23 This picture is further supported by Kant’s definition of an end: ‘an object of the choice (of a rational being)’, albeit one to which we can only constrain ourselves (MS 6:381).
Given that choice can be used to realize, alter (or otherwise affect) internal or external objects, we can understand freedom in the internal use of choice to involve directing choice inwardly, towards internal objects.Footnote 24 Freedom in the external use of choice, by contrast, is freedom of choice so far as it ranges over external things. Thus, by setting my mental faculties into motion, I can act to bring it about (1) that I have a certain end or goal, (2) that this goal plays a certain systematic role in organizing my further actions, (3) that I struggle against my inclinations to take a certain attitude towards the obstacles I face, (4) that I wish it were easier to satisfy, and so on, just as I can bring it about that (5) I paint a canvas by setting my body in motion. (1)–(4) are internal acts, whereas (5) is an external act (though partly constituted by antecedent internal acts).Footnote 25 If so, Kant’s claim that ‘anyone can be free as long as I do not impair his freedom by my external action’ makes perfect sense (MS 6:231). What you do with inner objects of choice has no direct impact on me. You can take whatever ends and adopt whatever maxims and take whatever attitudes towards me you want without infringing on my freedom. By contrast, what you do with outer objects of choice can compromise my bodily integrity (as when you hit me with a bat) and reduce the number of things at my rightful disposal (as when you originally claim the bat as your own).Footnote 26
In sum, the first contender for the title of external freedom in Kant’s Rechtslehre is nothing other than our free power of choice, directed externally. It is this notion that explains those views according to which external freedom refers to an ability to move about in space or to pursue one’s purposes by the use of one’s external means.Footnote 27 So far as principles of right are silent with respect to an agent’s ends, this also explains neatly those accounts that take external freedom to amount to the freedom to take up any end you choose: principles of right leave this genuinely up to us. For the same reason, external freedom as freedom in the external use of choice explains Kant’s remarks to the effect that ‘Right generally has as its object only what is external in actions’: what is internal in actions is not subject to outer constraint because it does not itself constrain outwardly (MS 6:232). If freedom in the external use of choice were the only candidate for the title external freedom, the classical account, according to which external freedom is free choice, simpliciter, would need only a minor amendment. Yet, as I have suggested, there is another contender for this title, to which we should now turn.
12.2.2 External Freedom as Independence
Kant holds that freedom, understood as ‘independence from being necessitated by another’s choice […] insofar as it can coexist with the freedom of every other in accordance with a universal law is the only original right belonging to man’ (MS 6:237).Footnote 28 Like freedom in the external use of choice, commentators refer to this notion too as ‘external freedom’.Footnote 29 So understood, external freedom is not (an aspect of) a capacity that we have, but instead describes a normative principle governing the relationship between persons’ powers of choice. If the institutional preconditions of right are realized, the result is that we are independent (externally free) in just this sense.
We should now dig deeper and try to get clear on what exactly innate right demands. Innate right prescribes independence from others’ necessitating powers of choice. Readers will recognize necessitation as a technical term, introduced in the context of Kant’s famous treatment of moral rationality. It refers to human choice insofar as it is contingently, not infallibly, determined by rational practical laws but necessitated to them by practical reason (GMS 4:413, 4:439; MS 6:379). On the Kantian picture, moral obligation is paradigmatic of this kind of constraint.
It is thus tempting to read the notion of necessitation drawn from Kant’s moral philosophy into Kant’s statement of our innate right. On this reading, innate right protects against obligations imposed on us from without (so far as such independence is compossible, i.e. can coexist with everyone else’s freedom under universal law). But this is just to be compossibly free from obligations grounded in acquired rights and positive law. After all, positive law is that act of lawgiving by which a moral agent binds ‘another by mere choice’ rather than through laws recognizable as obligatory by reason alone (MS 6:224). And acquired rights are those ‘moral capacities for placing others under obligation’ that are authored by a person’s lawgiving, juridical act, rather than obtaining simply by nature independently of such an act (6:237).
The temptation is now to say that the right to independence is nothing other than the compossible freedom from others’ positive lawgiving – lawgiving that obtains both when the state enacts laws and when individuals acquire rights.Footnote 30 But this is too quick. After all, necessitation admits of a broader interpretation than the above reading suggests. Nöthigung can simply indicate constraint without any relation to obligation or law.Footnote 31 Moreover, this rendering makes sense of the emphasis Kant places on coercion (Zwang) throughout the Rechtslehre – the two words after all can be used interchangeably. Yet, there are three good reasons to prefer the narrow reading suggested above.
First, the main virtue of the broad reading, namely that it accounts well for Kant’s focus on coercion, is not completely lost to the narrower reading. To see this, recall that, on my preferred interpretation, the necessitation that we are guaranteed against is that which results from others’ lawgiving wills. Notice further that, on Kant’s account, lawgiving necessarily involves two components: (i) giving a law, and (ii) providing an incentive (see e.g. MS 6:218–19). The relevant incentive in the case of outer lawgiving is explicitly cashed out in terms of coercion’s ability to provide incentives of hope (and, especially, fear).
Admittedly, this means that our innate right does not pick out all coercion as potentially concerning – only that which is part of issuing law. By the same token, however, it is only if Kant’s remarks about coercion clearly and unequivocally imply that we are to be compossibly free from coercion in a perfectly general way that appeal to the broader notion is necessary. But in suggesting this, the broader reading presents a puzzle about the systematic place of coercion in Kant’s broader thought. To read Kant as concerned with necessitation in the broad sense is to read him as introducing a new kind of concern with the Rechtslehre, one that is absent in his earlier moral thought. Notice: there is no analogous question if we read necessitation more narrowly, such that it essentially involves lawgiving. For (as I explain below) Kant is famously sceptical that we have reason to acknowledge alien constraints on our free choosing (GMS 4:432 compare V-MS/Vigilantius 27:500 and MS 6:379–80).
Third, if Kant is focused on bare coercion (without connotations of law and obligation), it is hard to make sense of the structure of private right and various claims that Kant makes in it. For instance, he explicitly claims that ‘lawgiving is involved in the expression, “this object is mine,” since by it an obligation is laid upon all others (weil allen andern dadurch eine Verbindlichkeit auferlegt wird), which they would not otherwise have, to refrain from using the object’ (MS 6:253, emphasis added). But if coercion in the wider sense is what is normatively relevant as far as right is concerned, then the focus on new obligations is out of place. What matters in the case of property claims is that they are frequently enforced through violence. In line with this, the analysis should proceed explicitly with reference to the way that property rights involve coercion. But it does not so proceed.
For these reasons, I suggest that we reject interpretations which rely on the broader notion of necessitation. So far as we do, Kant’s statement of our innate right invites a question: How far can we remain free of external positive lawgiving, consistent with everyone’s like freedom under universal law? Put differently: how far must we admit a capacity on the part of others to give practical laws that necessitate our own powers of choice?Footnote 32
Such questions would have been salient to Kant. After all, Achenwall (author of Kant’s textbook on natural law) simply defines freedom in terms of an independence from so-called overlordship. ‘A person enjoys full liberty’, he writes, ‘if he is independent of another’s overlordship in all his actions […] Hence someone is free (autonomous) in as far as he is not subjected (heteronomous)’ (§ 83). Moreover, overlordship specifically involves having a right over someone’s otherwise rightful actions along with a capacity to oblige her (§§ 74–7). And yet liberty is not an all-or-nothing affair – a person’s liberty might be partial, in which case they are only free in some of their actions from the overlordship of others.Footnote 33 In Achenwall’s language, the question that Kant’s innate right asks is: how far is our freedom from others’ overlordship compatible with everyone’s like freedom?
Now, importantly, when it is understood this way, external freedom as independence has nothing to do with others constraining us by moving about in space – except insofar as what we do in space places others under new normative constraints. It says nothing directly about choosing means to various ends or manipulating which purposes we pursue with our means – except insofar as our doing so has the effect of necessitating others. It has nothing obvious at all to do, in other words, with freedom in the external use of choice at all. And yet, right clearly has to do with the latter. What’s the connection?
The fact that it is only by exercising external choice that we can compromise others’ freedom as independence (‘anyone can be free’, recall, ‘as long as I do not impair his freedom by my external action’) suggests an answer. Right is concerned with freedom in the external use of choice in the specific sense that this is what principles of right constrain. You may not use your external freedom to necessitate me unless doing so is required by universal law. In turn, if I have a right, by the lights of universal law, to constrain you against some action (e.g. interference with my property), then you cannot use your external freedom in the ways specified. Right is not, as is commonly suggested, concerned with freedom in the external use of choice because this is the kind of freedom that it matters to protect (pace Uleman). Right will, of course, protect freedom in the external use of choice. It will do so simply by virtue of the fact that, when persons’ freedom in the external use of choice is limited as right requires, each will remain free to perform those external actions still within her rightful power. But this is not because freedom in the external use of choice is intrinsically valuable or anything like that. It is because we have a very narrow mandate for binding others through our mere choice. Such others are, after all, laws to themselves.Footnote 34 Our authorization to bind them is properly limited to those instances when submitting to our binding is a necessary condition of everyone’s independence.
12.3 Autonomy and Kant’s Politics
So far, I have urged that we should distinguish between freedom in the external use of choice (external freedom as capacity) and the kind of freedom to which we have an innate right (external freedom as independence). I have also argued for a particular reading of the latter that, I think, implies that Kant does not change the topic with respect to freedom when his attention turns to politics. In this section, I want to substantiate that claim. I will show that the principle encoded in our one innate right picks up directly where Kant’s moral philosophy left off: with the idea of an autonomous human will, independent of alien lawgiving.
Towards this end, it is helpful to recall a few familiar details from Kant’s ethics of autonomy and how it differs from the systems that came before it. In his moral philosophy, Kant seeks to arrive at the philosophical foundations of the common-sense view that morality is binding in a special way. Whereas several constraints that we face are hypothetical, that is, derive their grip on us from something that we desire or a goal that we’ve set, morality has a categorical character that makes its demands unconditional with respect to our desires and goals (GMS 4:414–16). If I want to live a healthy life, the requirements to eat well, exercise regularly, and get sufficient sleep are good ways of realizing my desire. Give up the desire, though, and I may live in a sleepless haze of gluttony and sloth. As Kant sees it, morality is not like this. That I must refrain from murdering you does not depend upon whether omitting to slay you has any particular benefit to me or advances some goal of mine. I must refrain from slaying you whatever else I want.
On Kant’s reckoning, past moral systems searched for a ground of morality’s special bindingness (they too wished to account for this aspect of common sense). But their efforts were in vain for having built systems according to which our wills were necessitated (genöthigt) to moral action by something alien to them – either principles of purposiveness like perfection or principles of sensibility like happiness (GMS 4:434; GMS 4:442). Give up the goal of making myself perfect (or change or abandon my conception of happiness), and there with it goes the practical imperative by which I took myself to be bound. To overcome this defect in past systems, Kant rejects the supposition that generates it: that the will must be bound by something else to moral action.
Rejecting this assumption leaves Kant with a picture according to which we are necessitated by our own internal lawgiving capacity (practical reason), which is necessarily rational, and represents our proper self.Footnote 35 In his lectures on ethics nearly ten years later (1793), Kant allegedly formulated a principle – call it the Autonomy Principle – which makes clear that, to bear the weight of the above features of morality, our capacity for practical reason must be independent—not just from objects of inclination and feeling – but also from determination by others’ wills.
All autonomy of reason must therefore be independent, (a) of all empirical principles, such as the principle of personal happiness, which may be called the physiological principle; (b) of the aesthetic principle, or that of moral feeling; and (c) of any alien will [von allem fremden Willen] (the theological principle) […] it cannot be assumed that the principle of the choice to be determined lies in an object of purposiveness, sensibility or alien will, without perpetrating a heteronomy; it is supposed, after all, to be independent of any object of choice.
Dependence upon sensible objects of choice is not the only threat to autonomy; dependence upon alien wills constitutes heteronomy, too (compare Refl. 3872 (17:319-20) and Refl. 4549 (17:590)). If practical reason (Wille) recognizes constraints in others’ contingent power of choice, the question raised so poignantly in the Groundwork re-arises: why must we recognize unconditional obligations that are grounded in others’ wills?
But this isn’t quite right either: Kant’s position in the moral philosophy suggests that the question is confused. Because Kant accepts the strong view that constraints grounded in alien sources are not categorically binding, he appears to reject outright the possibility of genuine political authority. For on the above picture, genuine obligation is always self-obligation, that is, obligation by means of laws generated by our rational will, laws that are universal, necessary, and unconditional.Footnote 36 By contrast, obligation by others’ power of choice appears to be arbitrary, contingent, and dependent upon the constrained agent’s desire to avoid any sanctions the other might threaten. Thus, Kant’s moral theory can seem to entail a kind of philosophical anarchism.Footnote 37
And yet, political obligations appear to be no less a feature of ordinary moral cognition than the unshakeable sense that morality binds unconditionally. We recognize in our ordinary lives, in other words, several demands that are at least prima facie laid down by others’ arbitrary and contingent acts of choice. Our political duties are grounded in large part by acquisitive acts and legislative choices that long preceded our birth. The demands these acts make upon us extend to nearly every aspect of our lives. That Kant’s notion of autonomy appears prima facie inconsistent with any obligation that has its source in the particular will of another is bad news for a metaphysics of morals that seeks to rationalize commonsense practical cognition.
As he is typically read, Kant’s goal in the Rechtslehre is to show that external freedom is inconsistent with anarchy.Footnote 38 Indeed, securing external freedom winds up demanding that we acknowledge an absolute duty to obey the political authorities over us in whatever does not conflict with ‘inner morality’ (MS 6:371). This means, as Ripstein puts it, that Kant’s approach to political questions leaves no room for any ‘general objection to authority as such’.Footnote 39 The fact that his moral principles (with their embrace of autonomy) seem so naturally to lead to the rejection of political authority while his political principles are almost designed to embrace it has led scholars to conclude that Kant simply changes the subject regarding freedom once he sets his sights upon the political domain.Footnote 40
We are now positioned to understand why claims that Kant’s political philosophy is radically discontinuous from his moral theory with respect to freedom are overstated. It is true that (i) Kant’s political philosophy is structured around a notion of freedom distinct from his notion of autonomy and (ii) this notion of freedom furnishes Kant with a justification – in principle – for state authority. It is, moreover, true that he does not offer political principles designed to make achieving virtue as easy as possible (by removing temptations to it). Still, the relevant sense of freedom at stake here is that each be free of every other’s necessitating power of choice. And if to have one’s power of choice necessitated is to have it subjected to law (as I have suggested above), and we are to be free from such necessitation insofar as it comes from others’ acts (rather than principles internal to our will) then Kant’s statement of our one innate right to freedom fits perfectly with a moral theory that emphasizes that genuine moral obligations are self-legislated. Still, it does not move as quickly to the anarchist’s conclusion as some.Footnote 41 The catch is in the last clause, which states that we are rightfully subject to others’ lawgiving insofar as our independence from such cannot coexist with everyone’s freedom under universal law. Why? Because human reason must be universal and self-consistent. It cannot confer upon some powers that it denies to others.
The picture is this. If everyone’s independence from external necessitation is incompatible with everyone’s freedom under universal law, and some distinct and lawful dependence on external necessitation would change that, then our own practical reason demands that we subject our external freedom as capacity to law just that far. When this is so, we must recognize the authority of others to give law by our own lights. Put differently, there might be conditions under which I am under a self-legislated duty to acknowledge another’s right to bind me by mere choice. So long as the exercise of the relevant authority stays within proper limits, the alien appearance of this duty is merely apparent.
In sum, Kant’s political theory approaches alien legislative activity exactly as a theory concerned with autonomy should. Such legislative activity lacks authority over us except insofar as it can itself be shown to be a requirement of our own self-legislative capacities. Of course, this is a tall order and the arguments to this conclusion might fail. When so, it is possible that each of us must be completely free from standing under obligations grounded in others’ acts of lawgiving. Anarchism is a genuine option on the Kantian view. But perhaps the case can be made and complete freedom from alien lawgiving cannot coexist with others’ freedom under universal law. When so, it follows that we are rightfully subject to some at least apparently alien lawgiving. In the end, we recognize just as much political authority as is required for our freedom to be consistent with everyone else’s freedom. We are in that sense equals.
12.4 Problems: New and Old
If the above is on the right track, our innate right protects against a kind of normative interference, not a kind of merely physical or spatial interference. Against this, it might be urged, Kant also very clearly claims (as we have seen) that it is by means of freedom in the external use of choice that we threaten one another’s freedom. This generates two related worries. First, it is implausible that all the ways in which we can wrong one another by exercising freedom in the external use of our choice involve obligation-imposition. Second, it is not clear by what mechanism exercising freedom in the external use of choice involves lawgiving. Let us take these in reverse order.
Recall that, on my analysis, freedom in the external use of choice involves directing choice outward to objects distinct from us. Paradigm cases include: typing on a laptop, bouncing a basketball, eating an apple, painting a canvas, scaping a plot of land, and so on. Not only does none of this need to be moral to count as an exercise of freedom in the external use of choice, but also none of it seems obviously to involve lawgiving acts. My painting the canvases I can get my hands on does not compromise your ability to be a law to yourself and paint the canvases you can get your hands on. In exercising my free choice out in the world, I may take an object you wanted or previously had, but this appears not to affect, one way or the other, your will’s independence from alien lawgiving.
Yet, as is by now well known, Kant does not think that mere use of objects suffices to realize the kind of freedom we are rationally committed to wanting.Footnote 42 Rather, he suggests that freedom demands extended use of objects as a postulate. This postulate demands that we incorporate outer objects into our purposes long term and to the exclusion of others.Footnote 43 But for this ability not to rest on mere luck (e.g. happy circumstances in which we are sufficiently isolated from others as for there to be no conflicts), extended freedom in the external use of choice requires normatively excluding others from the objects we incorporate into our projects. If I can paint my canvas only so long as you are not around to interfere with it or destroy it, my free choice finds its use of the object frustrated. If I can’t constrain you to keep to a contract that we’ve made after we’ve made it, then I can’t incorporate your behaviour into my long-term plans. And if you marry me but can’t stop others from marrying me even if you want to, then our relationship cannot be incorporated into your projects in a stable way. Thus, I must take myself to have the power to stop you from using what’s mine, even when it is not in my physical possession.
Kant’s argument for the postulate of private right is to show exactly that we can have external objects as mine or yours and that we can constrain people in these ways. So understood, the restriction of autonomy in question is not the mere exercise of outer choice, but an extended exercise of the same that invokes at the same time a moral powerFootnote 44 to impose obligations on others by merely choosing externally.Footnote 45 How do we do this? By taking control of an object, giving a sign, and intending to give a law through the general will ‘in idea’,Footnote 46 a law which places others under new obligation to refrain from interfering with what is mine (MS 6:258–9).Footnote 47
Now, even if this shows that we can restrict one another’s autonomy by exercising freedom in the external use of choice, it stops short of showing that this is the only – or even the paradigmatic – way we interfere externally with one another’s freedom. After all, if anything violates my innate right to freedom, the thinking goes, your murdering or assaulting me does. And yet neither murder nor assault involve placing others under new obligations. Moreover, Kant seems to accept assault as a paradigmatic violation of innate right: the reason that property rights are not needed to explain why it is wrong to snatch the apple out of my hand or force me off the land I occupy is that such acts already wrong me with respect to ‘what is internally mine (freedom)’ (MS 6:247–8). And in case that leaves room for doubt, Kant is clear early on that innate right belongs to everyone by nature and can also be regarded as the ‘internally mine or yours’ (MS 6:237). But, on the account developed above, the fact that these violations of freedom do not place me under any new normative constraints straightaway implies that they are not inconsistent with innate right. A major problem.Footnote 48
In response, notice that we might pursue an indirect grounding of the freedom from assault. Failing to guarantee such freedom, the argument would go, is a requirement of innate right because failing to place others under obligation to refrain from assaulting us would be inconsistent with freedom under universal law. Consider Kant’s notion of the internally mine. On this notion, what’s internally mine belongs to me without requiring any special act to establish it as mine. What Kant is saying when he calls freedom as independence our innate right is, in effect, that the obligation to refrain from violating that right does not stem from any particular agent’s act of Willkür, but from every agent’s Wille as practical reason. And yet asserting my claim over what is internally mine is an act of willkürlich lawgiving. Only, rather than being one in which I am the author of the law (as in the case of positive law), it is instead one in which I am the author of the obligation in accordance with the law, that is, an act of lawgiving in which a natural law serves as its ground (MS 6:227). In those cases where my act of necessitation merely directs someone to comply with a natural law, the thought goes, it is easy to satisfy the compossibility condition. The absence of a norm against assault cannot coexist with everyone’s freedom in accordance with a universal law, and so necessitation to this effect immediately satisfies the constraint specified in our innate right. Those bound by such lawgiving acts have no legitimate complaint.Footnote 49
This picture might seem to leave Kant unable to claim that we have only one innate right, namely to independence. For surely saying that each of us has, in addition, a right to freedom from assault (which is internally ours) suggests a second entitlement that exists merely in virtue of our humanity.Footnote 50 But it is unclear how much this should disturb us. For long before Kant decided that parsimony demanded that we accept only one innate right, he included the right to be secure in one’s body and person in that category (see e.g. V-MS/Vigilantius 27:588–93; V-NR/Feyerabend 27:1338). So while Kant may have been experimenting with a more parsimonious account, it is clear that he thinks that innate right includes rights over one’s person (and that others’ innate rights constrain the way we may act towards them).Footnote 51 He is simply mistaken in thinking that innate right itself (as he formulates it) logically entails these sorts of strong rights to the integrity of the person without recourse to independent natural laws.
12.5 Conclusion
Although readers of Kant’s political philosophy frequently claim that the relevant notion of freedom for understanding his thought is external freedom, unclarity remains about the precise meaning of external freedom. I have argued that this is not the fault of commentators, but of Kant’s own unclear exposition. For there are two distinct notions of freedom in the Rechtslehre, both of which have a plausible claim to the title. By specifying each clearly, we better understand their systematic place in Kant’s political philosophy. What I have called freedom in the external use of choice allows us not just to interact with the outside world but also to interfere with and constrain one another’s by engaging in acts of external lawgiving. By contrast, our innate right to freedom demands that impinging on our autonomy through such lawgiving is to be tolerated only insofar as it is necessary to secure everyone’s freedom under universal law.
All of this suggests an answer regarding Kant’s unstated positive notion of political freedom. If negative political freedom amounts to compossible independence (Unabhängigkeit) from external necessitation, positive political freedom amounts to the capacity (Vermögen) to necessitate others externally when doing so is necessary to preserve freedom under universal law, or, what comes to the same thing: the capacity to exercise justified political authority. Unfortunately, making this case must be left for another time. What is important for now is to notice how well Kant’s political philosophy coheres with his moral philosophy on the story told above.Footnote 52
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