Excerpt from Self-Constitution: Agency, Identity, and Integrity by Christine M. Korsgaard
7.5 Kant and the Constitutional Model
One of the prevailing misconceptions about Kant is that he espouses the Combat Model of the soul. To see that Kant uses the Constitutional Model, we need only consider the argument he uses in the third section of the Groundwork to establish that the categorical imperative is the law of a rational will (G 4:446–8). Kant argues that insofar as you are a rational being, you must act under the idea of freedom. And a free will is one that is not determined by any alien cause—not determined by any law that it does not choose for itself. If you have a free will, then you are not, as Kant puts it, heteronomous. But Kant claims that the actions of a free will must be determined by some law or other. We have already looked at the argument for this in 4.4, the argument against particularistic willing, which shows that the will must always determine itself in accordance with some universal law. Since, if you have a free will, you cannot be heteronomous, and yet you must have a law, then you must be autonomous—you must act on a law that you legislate for yourself. And Kant says that this means that insofar as you are rational the categorical imperative just is the law of your will.
To see why, we need only consider how a person with a free will must deliberate. So here you are with your free will, completely self-governing, with nothing outside of you giving you any laws. And along comes an incentive, let us say, a representation of a certain object as pleasant. Being aware of the workings of that incentive upon you, you have an inclination for the object. And that inclin- ation takes the form of a proposal. So the inclination says: end-E would be very pleasant. So how about end-E? Doesn’t that seem like an end worth pursuing? Now what the will chooses is, strictly speaking, actions, so before the proposal is complete, we need to make it a proposal for action. Instrumental reasoning determines that you could produce end-E by doing act-A. So the proposal is: that you should do act-A in order to produce this very pleasant end-E.
Now if your will were heteronomous, and pleasure were a law to you, this is all you would need to know, and you would straightaway do act-A in order to produce that pleasant end-E. But since you are autonomous, pleasure is not a law to you: nothing is a law to you except what you make a law for yourself. You therefore ask yourself a different question. The proposal is that you should do act-A in order to achieve pleasant end-E. Since nothing is a law to you except what you make a law for yourself, you ask yourself whether you could take that to be your law. Your question is whether you can will the maxim of doing act-A in order to produce end-E as a universal law. Your question, in other words, is whether your maxim passes the categorical imperative test. The categorical imperative is therefore the law of a rational will.
Inclination presents the proposal; reason decides whether to act on it or not, and the decision takes the form of a legislative act. This is clearly the Constitutional Model.
Recall now the conclusion we derived from Plato. The dictates of reason are the dictates of the person, but this is not because the person is identiﬁed solely with his reason, and so regards his appetites as alien things. It is rather because the person is identiﬁed with his constitution, and his constitution says that reason should rule. Could Kant have held this view? You may think not, for in the Groundwork, Kant famously and rather morosely says that ‘‘inclinations themselves, as sources of needs, are so far from having an absolute worth . . . that it must instead be the universal wish of every rational being to be altogether free from them’’ (G 4:428). Kant appears to disagree with Plato’s ratiﬁcation of the view that the man has a pain in his ﬁnger, and to suppose instead that it is only the ﬁnger that has the pain.
But in the more considered view of Religion within the Limits of Reason Alone, Kant took this back, and even apparently took himself to task for having said it: ‘‘considered in themselves,’’ he says there, natural inclinations ‘‘are good, that is, not a matter of reproach, and it is not only futile to want to extirpate them but to do so would also be harmful and blameworthy’’ (REL 6:58).
In any case, Kant is absolutely committed to the conclusion that I have just mentioned: that the person identiﬁes, not directly with his reason, but with his constitution. Kant is committed to this by what he says in his political philosophy about the nature of the state. This will be a bit of digression, but I want to explain why this is so.
According to Kant, the purpose of the state is the coercive enforcement of human rights. Rights by their very nature admit of coercive enforcement, and indeed they are the only things that do that, for our freedom is embodied in our rights, and the only legitimate use of coercion is in defense of freedom—coercion may be used against coercion itself. But in order to be in this way legitimate, the use of coercion must be reciprocal rather than unilateral. I force you to give way to my right on the implicit understanding that you would be justiﬁed in forcing me to give way to yours. Coercive action must be governed by a law that holds for both of the parties who are involved in it. In other words, for the use of coercion to be legitimate, everyone collectively must compel each one individually to respect the freedom of each other one. So the political state more generally must embody the general will of its people to the reciprocal enforcement of rights. And in order to do this, Kant argues, the state must be a republic, characterized by a constitution and by the separation of powers, in which legislation is carried on by the representatives of the citizens.
To see why, we must look at Kant’s complex account of the nature of political authority. Kant asserts that ‘‘legislative authority can belong only to the united will of the people’’ (MM 6:313). This is clear enough from what we have already said—the laws are coercive, and so must be grounded in the general will to the reciprocal enforcement of rights. When a state is formed, this legislative authority is invested in what Kant calls a sovereign authority or ruler, which may be constituted by all, some, or one of the people, making the form of sovereignty democratic, aristocratic, or autocratic respectively (MM 6:338–339; PP 8:352).
Now the sovereign or ruler in a sense has the right to govern, but it isn’t exactly, or necessarily, the government yet. The sovereign is rather the voice of the legislative authority of the people. But the sovereign or ruler is responsible for setting up the government. This may make the ﬁrst step—the determination of the form of sovereignty—seem like an extra step, but it is not, and it is important to see why it is not. Kant does not assume, the way that, say, Locke does, that the united will of the people is automatically expressed by a majority vote.⁸ Majority voting is just one way to unify the people into a collective legislative authority—that is, a collective agent—and it is not a privileged way. Speaking strictly, only the unanimous choice of all of the people could determine the form of sovereignty, and the people could unanimously just as well choose autocracy as democracy.
Of course it is unlikely that any real group of people would spontaneously reach a unanimous decision about how to make their decisions, but this doesn’t show that the determination of the form of sovereignty is an extra step. It only shows that there is usually no legitimate way to make this step. Let me illustrate the point. Suppose you’ve got a hundred people, and each of them agrees that he wishes to compound with the others, and form a collective agent, a state. The next thing they must do is to decide how their collective decisions are to be made. If each of them, individually, wants to use majority voting, then they have a democratic form of sovereignty, and it’s perfectly legitimate. But in exactly the same way, if each of them, individually, wants to have an autocracy, with Solomon in charge, then they have an autocratic form of sovereignty, and it’s perfectly legitimate. Democracy and autocracy are exactly on a footing, so far as legitimacy goes. Democracy may be better in all sorts of ways, but its claims to legitimacy are not superior. Actually, what I’ve just said oversimpliﬁes the problem, for I’m ignoring the fact of future generations, whose agreement is also needed for legitimacy. That’s so much the better for the argument, for I am trying to show that there is a problem here. But even if we set aside the problem posed by future generations, a unanimous choice isn’t going to happen—I mean, they aren’t all going to agree on a form of sovereignty. So now suppose they don’t. Suppose that ninety-eight of them want democracy, but two of them want autocracy, with Solomon in charge. (Probably one of them is Solomon, but that doesn’t matter to the argument.) Now we are at an impasse. Since democracy has no prior claims to legitimacy, we obviously cannot say that the ninety-eight may legitimately prevail because they are the majority. Exactly what’s in question is whether the majority is to rule or not. So if the majority does prevail, it is not legitimately, but merely as a tyranny of the majority. And if the two prevail, and manage to put Solomon in charge, of course that is tyranny too. So if, as seems likely, there is any disagreement about the form of sovereignty, then there is no way to determine what it should be. And of course, even if there were an original agreement, new generations are going to be born, and they might not agree.
So, since that step can’t be made, let’s just skip it, for now anyway, and suppose that somehow or other the form of sovereignty has been determined, not necessarily legitimately, and there is a ruler, under whom these people are able to function as a collective agent. Now as I said, the sovereign or ruler’s job is, strictly speaking, to set up the government. Suppose the sovereign ‘‘itself,’’ as Kant puts it, simply proceeds to govern—it carries out all three functions of government directly. In this case, the government is despotic. Even if the de facto form of this sovereignty is democratic, the direct rule of the minority by the majority is despotic, for as we’ve just seen, the democratic form is not privileged, and we can’t just assume that everyone agrees to democracy. Suppose instead, however, that the sovereign in Kant’s strange words ‘‘lets itself be represented’’ (MM 6:341). That is to say, the sovereign adopts a constitution that sets up the ofﬁces of various magistrates who perform the three functions of government separately, and all government takes place through this constitution. In this case, the government is republican (MM 6:341). A republican constitution, Kant says, is the ‘‘the only constitution that accords with right’’ (MM 6:340) because it is ‘‘the only constitution of a state that lasts, the constitution in which law itself rules and depends on no particular person’’ and in which therefore ‘‘each can be assigned conclusively what is his [his rights]’’ (MM 6:341). In a republican constitution, Kant is saying, every person is bound by the law and so nobody’s rights are dependent on anyone’s will—not even on the majority’s will. Kant puts it this way:
Any true republic is and can only be a system representing the people, in order to protect its rights in its name, by all the citizens united and acting through their delegates (deputies). But as soon as a person who is head of state (whether it be a king, nobility, or the whole of the population, the democratic union) also lets itself be represented, then the united people does not merely represent the sovereign: it is the sovereign itself. (MM 6:341) The point is that once such constitutional forms are established, the united people no longer have to invest the sovereignty in any ‘‘person,’’ not even the majority. Instead the people govern themselves directly through their constitutional forms. This means that, once this form of government is in place, it does not matter that there was no legitimate way to establish the form of sovereignty. We don’t have to agree on the question in whose hands we shall invest the sovereignty, because it doesn’t have to be in anybody’s hands. (And even if we did have initial unanimity about the form of sovereignty, only the republic constitution ‘‘lasts’’—remains legitimate—since only it solves the problem of new generations.) Outwardly, of course, somebody must administer the various functions of government, but those who do so are now regarded as ‘‘delegates’’ who work for the people in accordance with the constitution, not as authoritative individuals in whom the sovereignty has been invested. We are uniﬁed not under a centralized authority, but under constitutional forms themselves.
Only under such a constitution can a people really rule themselves. Kant goes so far as to claim that the despotic forms of government are mere empirical appearances, of which the true Republic is the form (MM 6:340, 371).⁹
So if Kant does use the Constitutional Model for the soul, and the analogy holds, he is committed to rejecting the despotism of reason. True unity requires a constitution, which makes it possible for a whole to rule itself, and the merely apparent or empirical unity that is achieved when one part rules another is just a poor earthly substitute for that. That applies to the person as much as to the state. So for Kant, just as for Plato, reason must rule for the good of the whole, and if we identify with the voice of reason, it is only because we identify with our constitution, and it says reason should rule.
The Constitutional Model, I have proposed, can be used to explain the nature of action. This is because it can be used to explain how we can attribute a movement to an agent as the agent’s own. At the same time, it shows us why certain formal principles—the categorical imperative, and Plato’s principle of justice—are constitutive principles of action: because they bring the constitutional unity that makes action possible to the soul. If that is so, then agents must act justly and on the categorical imperative, if they are to act at all. But in that case, what happens when an agent acts badly? That will be my topic in the next chapter.
8. John Locke, The Second Treatise of Government, section 96.
9. In the latter passages Kant says that the idea of a rightful constitution, a republican constitution, is an ‘‘idea,’’ in the technical sense which he himself associates with Plato’s forms in the Critique of Pure Reason (C1 A312–320/B368–377; A567–569/B595–597).
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