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§4. A Third Alternative

§4. A Third Alternative

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the rejection of the principle of happiness as a criterion of basic public law;

the freedom of religion and the right to pursue our happiness

in our own way free of state interference, provided we respect the rights of others.



As for Kant’s practical hopes, the content of his reasonable faith, he

looked forward to the day when mankind would be organized into a society

of societies, each of which has its own representative constitutional regime.

Each regime would be a member of a confederation of peoples joined together to prevent war first of all. Underlying this hope is Kant’s belief that

a world state would be either a soulless despotism or else torn by civil war

as separate regions tried to gain autonomy, as well as his further belief that

democratic governments do not go to war with one another. A society of

peoples, all with constitutional regimes, would, he thought, be peaceful and

progressive in culture and the arts (“Perpetual Peace,” Ak. VIII:).

. The key to seeing Kant’s view as a third alternative lies in his interpretation of the social, or the original, contract. There are two crucial features

of this idea.

(a) The first feature is the special nature of the social contract. All contracts involve an agreement to pursue an end by joint effort or constraint

(as when I agree not to prevent you from advancing your end, and reciprocally, you agree not to prevent me from advancing mine). Here we do

not share these ends. The social contract, however, is a union of many

individuals—of all citizens—for a common end that they do all share (“Theory and Practice,” Ak. VIII:). Now this very same end is not only an

end they do share but an end that they ought to share. This is because

Kant thinks that the first decision we are obliged to make is to abandon

the state of nature and to unite with everyone else whom our actions may

influence in order to submit together to a system of public law that may

be enforced against us (Metaphysik der Sitten, I:§). Thus a state is a union

of people under the principles of public right (§).

(b) A second distinctive feature of the social contract is that it is an idea

of reason (“Theory and Practice” :). One thing Kant means by this is

that we are not to search for such a contract in the past, or to worry about

whether there ever was one or what its terms were. None of those inquiries

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is to the point, since the idea of this contract is an idea of reason and as

such it is nonhistorical. We understand the social contract the right way

when we understand it as the highest criterion of constitutional and basic

law. As the highest criterion, it obliges every legislator to frame laws in

such a way that they could have been produced by the united will of the

whole people and so to have the consent of each subject in the general

will. Kant says: “This is the touchstone of any public law’s conformity with

right. . . . [I]f a public law is so constituted that a whole people could not

possibly give its consent to it, . . . it is unjust” (ibid.). And at another place:

“for what the whole people cannot decide upon for itself, the legislator

cannot decide for the people” (MdS :–).

. As an example of the application of this principle, Kant says that the

law cannot establish a certain class of subjects as a privileged and hereditary

class (“Theory and Practice,” :), nor can it declare a religion the religion

of the state with appropriate sanctioning powers (MdS :–). “No people can decide never to make further progress in its insight (enlightenment)

regarding beliefs, and so never to reform its churches, since this would be

opposed to humanity in their own persons and so to the highest Right of

the people.” Any such law would be invalid, since it would violate our

descendants’ rights by preventing them from making further progress in

religious understanding.

The two distinctive features of the social contract mean that the contract formulates the highest principle in political matters, and honoring

that principle fulfills the first duty that everyone has as a reasonable and

rational person to enter into a social union with everyone else in which

the rights of all citizens are guaranteed by the principles of right. Everyone

has this duty. Thus in entering society by the social contract, each of us

achieves the very same end, an end we all share and ought to share. Hence

the first special feature of the contract. The second feature of the contract—

its being the highest criterion of basic law—follows from what reasonable

and rational persons could agree to as the test of basic law. This is enough

of Kant’s political doctrine to indicate that it is a third alternative. It is

different from starting with single individuals as atoms independent from

all social ties and then building up from them as a basis. And it does not

use the idea of the state as spiritual substance and individuals as mere acci-



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dents of its substantiality; the state is the arena in which individuals can

pursue their ends according to principles each can see are reasonable and

fair.



§. Hegel’s Legacy as a Critic of Liberalism

. Some writers think that among Hegel’s important legacies for today are

his criticisms of liberalism. Hegel’s critical insights are indeed significant; it

is less clear that liberalism, especially a liberalism of freedom, cannot recognize and account for them.

It is occasionally said of a liberal society that it has no universal, collective goal but exists only to serve the particular and private ends of its individual members, of what Hegel thinks of as civil society. A familiar example

of this is found in Hobbes’s political philosophy. In his state of nature, all

persons have the private or personal end of their own happiness, or of their

own security. These ends are, of course, not shared; they may be of the

same kind, yet they are not the very same end. Hobbes’s social contract

establishing the sovereign does not involve a shared end, much less an end

that everyone ought to share, except insofar as they are rational (as opposed

to reasonable). Moreover, the state’s institutions are a common end only

in the sense that they are a means to each individual’s separate happiness

or security. Those institutions do not specify a form of public political life

that is to be seen by citizens as right or just in itself and from which they

are moved by their sense of justice to act. The society of Leviathan is a kind

of private society. Hegel says of Hobbes’s approach that “it excludes mind

because it leads only to a juxtaposition.” There is no real unity since the very

same end is not publicly shared. This is one sense of atomic individualism.

As we have just seen, this criticism is not true of Kant. He supposes

that all citizens understand the social contract as an idea of reason, with

its obligatory shared end that they politically establish a social union. On

his doctrine, citizens have the very same end of securing for other citizens,

as well as for themselves, their basic constitutional rights and liberties.

Moreover, this shared end is characterized by reasonable principles of right

and justice; it is a form of political life that is reasonable and fair. It is to

citizens’ good, of course, that their rights and liberties are respected, yet



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respecting them is what citizens owe one another as the shared end of their

republican regime. So much is true of any liberalism of freedom, whether

that of Kant or J. S. Mill, or of A Theory of Justice. It is incorrect to say that

in a liberalism of freedom the state has no publicly shared common ends

but is justified entirely in terms of the private aims and desires of its citizens.

The tradition of the liberalism of freedom started at least with the Reformation and gives special priority to certain basic liberties: liberty of conscience and freedom of thought, liberties of persons and the free choice of

vocation—freedom from slavery and serfdom—to mention several basic

cases. Political liberalism is also a liberalism of freedom. Moreover, it assures

all citizens adequate all-purpose means (primary goods) so that they can

make intelligent use of the exercise of their freedoms. Their happiness,

though, is not guaranteed, for that is a matter for citizens themselves. The

liberalism of the (classical) utilitarians—Bentham, James Mill, and Sidgwick—is distinct from the liberalism of freedom. Its first principle is that

of the greatest happiness summed over all individuals. If it confirms the

liberal freedoms, it is a liberalism of happiness; yet if it doesn’t confirm these

freedoms, it is not a liberalism at all. Since its basic ideal is that of maximizing happiness, it is a contingent matter whether doing this will secure the

basic freedoms.

. A second criticism of liberalism is that it fails to see, what Hegel

certainly saw, the deep social rootedness of people within an established

framework of their political and social institutions. In this we do learn from

him, as it is one of his great contributions. But I don’t think that a liberalism

of freedom is at fault here. A Theory of Justice follows Hegel in this respect

when it takes the basic structure of society as the first subject of justice.

People start as rooted in society and the first principles of justice they select

are to apply to the basic structure. The concepts of person and society fit

together; each requires the other and neither stands alone.

If citizens of a constitutional democracy are to recognize one another

as free and equal, basic institutions must educate them to this conception

of themselves, as well as exhibit and encourage this ideal of political justice

publicly. This task of education is part of the role of a political conception.

In this role, such a conception is part of the public political culture: its first

principles are embodied in the institutions of the basic structure and appealed to in their interpretation. Acquaintance with and participation in

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§4. A Third Alternative

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