Professional Documents
Culture Documents
nl/hobs
Larry Krasnoff
Professor, Department of Philosophy, College of Charleston
Charleston SC 29424, USA
E-mail: krasnoff@cofc.edu
Abstract
Kant’s relation to Hobbesian voluntarism has recently become a source of controversy for
the interpretation of Kant’s practical philosophy. Realist interpreters, most prominently Karl
Ameriks, have attacked the genealogies of Kantian autonomy suggested by J. B. Schneewind
and Christine Korsgaard as misleadingly voluntarist and unacceptably anti-realist. In this
debate, however, there has been no real discussion of Kant’s own views about Hobbes. By
examining the relation of Hobbes’ voluntarism to a kind of conventionalism, and through a
reading of Kant’s most explicit discussion of Hobbes, in “Theory and Practice,”1 I argue that
Kant’s criticism of Hobbes is much more limited than it might first appear. Rather than
rejecting Hobbes’ voluntarism and conventionalism entirely, Kant ends up criticizing only
Hobbes’ understanding of the relation between these doctrines. The essay thus defends
Schneewind’s and Korsgaard’s histories of modern moral philosophy, and raises doubts
about realist readings of Kant’s practical philosophy.
Keywords
constructivism, conventionalism, Hobbes, Kant, original contract, realism, voluntarism
1 I. Kant, “On the Common Saying: That May Be Correct in Theory, But It Is of No Use in
Practice,” in Practical Philosophy, trans. M. Gregor (Cambridge: Cambridge University Press,
1996), 279-309 [8:275-313]. Hereafter abbreviated as TP. Throughout the essay, unbracketed
page numbers for Kant refer to this translation of Gregor; bracketed page numbers refer to
the edition of the Prussian Academy.
contemptible are ever used with relation to the person that useth them: there
being nothing simply and absolutely so; nor any common rule of good and evil
to be taken from the nature of the objects themselves; but from the person of
the man, where there is no Commonwealth; or, in a Commonwealth, from the
person that representeth it; or from an arbitrator or judge, whom men dis-
agreeing shall by consent set up and make his sentence the rule thereof.2
With these words, Hobbes sweeps away any traditionally realist or objec-
tive conception of the good. In its place, he proposes a radically subjective,
voluntarist, and finally conventionalist conception in which goodness is
relativized to the claim of a particular agent (“that … which he for his part
calleth good”). If there is to be any sense in which different agents can
understand something as objectively good, it can only be because the dif-
ferent agents can agree on a “common rule” that defines the object as good
for all of them. Such a common rule gets its force not from the nature of the
object that the rule approves, but from the act of the person who makes the
rule. As for how the ruler came to have this special, good-creating status,
Hobbes appeals to yet another voluntary act, through which the ruled agree
to be ruled by someone in particular (“an arbitrator or judge, whom men
disagreeing shall by consent set up and make his sentence the rule thereof”).
The sovereign of the commonwealth, established for Hobbes by covenant,
is just a special case of this sort of contractually established arbitrator – one
with the power to hire, fire, or overrule any subordinate arbitrator that
might presume to judge any disputes within that commonwealth.3
Voluntarism and conventionalism govern this account, at three different,
hierarchically structured levels. At the first level, an object becomes good
because an agent understands it as worth pursuing. One might think that
for Hobbes, an object is good because an agent desires it, but this is not in
fact what Hobbes says. He writes only that an agent calls what he desires
good. The appeal to goodness enters the picture not with the original appe-
tite, but with the labeling of the object of the appetite as worthy of pursu-
ing, and thus as good. It is a mistake to see in Hobbes, as a utilitarian
perhaps might hope for, any later-day realist (though subjectivist) under-
standing of goodness as the satisfaction of desire. Goodness is in its original
sense the result of an act of judgment on the part of an agent, the establish-
ing of a kind of first-person linguistic convention through which the
agent comes to define the goals of his or her actions as valuable. Hobbes’
2 T. Hobbes, Leviathan I.VI, 28-29. Page numbers for Hobbes’ Leviathan refer to the
English edition edited by E. Curley (Indianapolis/Cambridge: Hackett, 1994).
3 Leviathan II.XVIII, 113-115.
L. Krasnoff / Hobbes Studies 25 (2012) 43–65 45
4 See Hobbes, Leviathan I.IV. The importance of language to Hobbes’ project is the cen-
tral theme of the recent study by P. Pettit, Made with Words: Hobbes on Language, Mind, and
Politics (Princeton: Princeton University Press, 2008).
5 Compare the discussion in J. Hampton, “Hobbes and Ethical Naturalism,” Philosophical
Perspectives 6 (1992), 333-353.
6 See Leviathan I.XIV-XV. That humans need to enter into and keep covenants with one
another is the fundamental principle of the science of the laws of nature (“the true and only
moral philosophy,” 100), as set out in the first three laws. Laws 4-10 speak of virtues and vices
like gratitude and arrogance which in themselves do not refer to covenants, but Hobbes’
account of them essentially instructs us to be the sort of people that others would see as
likely to keep covenants. Laws 11-19 then instruct us to adhere to fair procedures for settling
disputes about covenants. So all of the laws of nature, and thus all moral values, are grounded
in the keeping of covenants.
46 L. Krasnoff / Hobbes Studies 25 (2012) 43–65
declaration by two or more agents that they will mutually surrender their
rights to act in certain ways, thereby defining the forbearance of those
actions as (publicly and not just privately) good.7 There are many reasons
why agents might enter into particular covenants, many goods that those
covenants might serve, but Hobbes is careful to describe the origin of cov-
enant in a way that is meant to eliminate the possibility of any sort of social
or public good that is prior to the original establishment of covenants
among human beings. One could say that covenants are introduced to serve
the collective good of security, but it is important to see that Hobbes defines
security not in terms of the collective preservation of human life, but in
terms of the assurance agents have that others have surrendered their
rights to harm them.8 Security is not for Hobbes a natural, collective good,
but a explicitly conventional good that human beings individually have a
psychological need to establish. All natural creatures seek to avoid death,
but only human beings fear death; only humans imagine the violence that
might be done to them by others, and assume a warlike posture as a result.
Our natural state of war is the consequence of our uncertainty about what
others might do to us, and so the individual good that is served by the col-
lective good of security is not so much the preservation of life, in itself, but
the assurance that our lives will not be taken by others. That assurance is
what is expressed in original idea of a covenant. It is true that we cannot
have the full assurance we seek without believing that others will be physi-
cally restrained from attacking us, but the very idea of their restraint is in its
original sense a kind of convention that they have agreed to obey (why they
obey, whether from fear of us or from fear of the ruler is, as Hobbes says, not
particularly important). Everything that is morally good, expressed in
Hobbes’ nineteen laws of nature, is thus defined as a commitment to con-
ventions of mutual restraint, to the keeping of covenant.
10 J. B. Schneewind, “Natural Law, Skepticism, and Methods of Ethics,” Journal of the
History of Ideas, 52 (1991), 289-308; “Kant and Natural Law Ethics,” Ethics, 104 (1993), 53-74;
The Invention of Autonomy (Cambridge: Cambridge University Press, 1997).
11 Schneewind, The Invention of Autonomy, Part IV, 429-530.
12 C. Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press,
1996).
13 Korsgaard, The Sources of Normativity, 21-27.
L. Krasnoff / Hobbes Studies 25 (2012) 43–65 49
for Kant, setting the terms of modern moral philosophy and prompting
Kant to develop Hobbes’ views in a new and ultimately more radical direc-
tion. But for Ameriks and Kain, Hobbes could inspire Kant only in a critical
sense, prompting him to oppose Hobbes’ views as undermining the objec-
tivity and authority of the moral law.
Thus it may seem surprising that in all of these debates, especially those
over Korsgaard’s book, there has been little or no discussion of what Kant
himself has to say about Hobbes.19 A main reason for this, which might
seem even more surprising, is that what Kant himself has to say about
Hobbes is relatively little. Most of Kant’s explicit references to Hobbes are
brief asides, and the main exception, the section subtitled “Against Hobbes”
in Kant’s “Theory and Practice” essay, is a discussion in political philosophy
that does not touch directly on the themes of moral autonomy or self-
legislation. Still, the discussion there would seems to provide at least indi-
rect support for Ameriks’ perspective, since Kant’s main conclusion is that
the original or social contract is not any sort of actual agreement made by
any actual individuals at any time, but a moral ideal that any actual govern-
ment ought to reflect. This conclusion seems to suggest both of Ameriks’
main claims: first, that Kant is committed to belief in independent moral
truths, and second, that Kant understands the independence of these
truths to consist precisely in their independence from anyone’s willing.
Since Kant seems to make these points specifically by criticizing Hobbes,
Korsgaard’s characterization of Kant as a kind of radicalized Hobbesian vol-
untarist seems especially suspect.
In the remainder of this essay, I will argue, through a reading of the dis-
cussion in “Theory and Practice,” that these impressions are mistaken.
Though Kant does criticize Hobbes’ view of the original contract as an
actual agreement, his own account of the original contract, and his political
philosophy more generally, do in fact reflect the sort of deeper Hobbesian
assumptions emphasized by Schneewind and Korsgaard. In making this
case, I will be relying heavily on the specific account of those assumptions
that I provided in the opening section of this paper. The key feature of this
account, not generally stressed in the contemporary debates about volun-
tarism, will be Hobbes’ commitment to conventionalism. This convention-
alism, I will argue, also structures Kant’s political philosophy in a very deep
19 A helpful recent account of Kant on Hobbes is G. Slomp, “Kant against Hobbes:
Reasoning and Rhetoric,” Journal of Moral Philosophy 4 (2007), 207-222. But ultimately
Slomp’s concerns are more narrowly political than the issues of voluntarism and realism
that I engage with here.
L. Krasnoff / Hobbes Studies 25 (2012) 43–65 51
The full title of Kant’s essay containing his explicit criticism of Hobbes is
“On the Common Saying: That May Be Correct in Theory, But It Is of No Use
in Practice.” Kant seeks to establish that it is this common saying itself that
has no validity for moral practice, by showing that morality itself sets out
ends that we ought to achieve in practice. These moral ends, he argues, are
possible through our efforts, despite the objections of putatively worldly,
cynical observers who scoff at humanity’s efforts to bring about what
morality requires. Kant divides his essay into three parts, in which he
responds serially to three different kinds of critics who respectively cast
doubt on the practicality of morality at three different levels.20 The first
level is that of the individual moral agent, who is alleged by the “private
individual who is still a man of affairs” to be too fundamentally motivated
by his or her own happiness for the pure concept of duty to have any practi-
cal force. The second level is that of the individual nation, whose laws are
alleged by the “statesman” to be relations of power and self-interest, on the
part of rulers and citizens alike. The third level is that of humanity as a
whole, the relations between nations, which are alleged by the “man of the
world” to be a series of conflicts and wars without any progress toward the
better. Although Kant frames these three allegations as general types of
objection, he also identifies each with a particular representative, who then
becomes the explicit target of Kant’s criticism. So the first section of Kant’s
essay is directed against “some objections” to his moral philosophy by
Christian Garve, the second section is directed “against Hobbes” and the
third “against Moses Mendelssohn.”
In his Kant’s Critique of Hobbes, Howard Williams argues that Hobbes is
the real target of the entire essay, of all three of Kant’s criticisms.21 At the
level of the actual text, at least, this reading seems questionable. Kant refers
explicitly to Hobbes just once, close to the end of the second section, men-
tioning but not quoting a passage from De Cive and going on to reject
its claims.22 By this time, Kant has already been responding to other
objections in this section: for instance, from Achenwall.23 By contrast,
Mendelssohn is cited and extensively quoted at the start of the third sec-
tion, and is the only explicit target of Kant’s criticisms in this part of the
text.24 And Garve is quoted and addressed constantly through the whole of
the first section of the essay.25 Kant’s text, then suggests that Mendelssohn
and especially Garve are more important targets of criticism than Hobbes.
So Williams needs to, and does, argue that all of these targets are meant to
stand for empiricist views in moral and political philosophy, taken gener-
ally, and that since Hobbes is the most famous exponent of an empiricist
view in moral and political philosophy, he is the real, implicit target of the
essay. If Garve is addressed more explicitly, that is just because he is a more
local, less controversial, and – since he had just reviewed Kant’s work –
more convenient target for Kant’s arguments. On this reading, Kant’s real
goal is to criticize empiricism, and for Williams, this means criticizing
Hobbes.
But in fact Kant’s aim is not to criticize empiricism, in this essay or any-
where else. For Kant, morality itself suffices as a critique of empiricism, by
demanding that we conform to unconditionally valid principles of duty,
principles that are unaffected by any claims about experience. That fact is
the starting point of the argument, for both Kant and his opponents in
“Theory and Practice.” What the opponents maintain is that the uncondi-
tional claims of morality are true – which a full-blown empiricist would not
grant – but only in some irrelevant theoretical sense. To demonstrate this
irrelevance, the opponents cite some alleged observation about human
nature that will make it impossible for us to achieve what morality demands.
Thus Kant’s target is not empiricism but the use of empirical observation to
discredit what is clearly valid prior to any observation. And Kant replies not
by denying the empirical observation in question, but by showing how our
moral ends themselves take account of the relevant empirical facts and
incorporate them into our aims as (finite) rational beings.
This is clearest in the reply to Garve, which is intended to explain the role
that happiness plays in Kantian moral thinking. Kant begins by fully grant-
ing the sweeping empirical claim that Garve hopes to use a critical wedge:
“I did not fail to remark that the human being is not thereby required to
renounce his natural end, happiness, when it is a matter of complying with
his duty; for that he cannot do, just as no finite rational being whatever
can.”26 Every human being is motivated by his or own happiness, just as
Garve wants to suggest, but this does not preclude the possibility of another
kind of motive, distinct from and having priority over any sort of desire. So
long as we can understand duty as a separate, self-sufficient motive,27 noth-
ing in morality is threatened by the recognition that we are always moti-
vated by our own happiness. Morality does not demand that we ignore the
end of happiness, as Garve suggests,28 but simply that we subordinate it to
duty in a principled way. The result of this subordination is a new, hierar-
chically structured end of all individual human action, the highest good, in
which happiness would be achieved in proportion to virtue. Here I do not
want to enter into all the problems with the idea of our working to achieve
this end, which Kant understands as possible only with divine assistance.
Kant’s religious arguments are beyond the scope of this paper.29 For pres-
ent purposes what is important is the structure of Kant’s reply to Garve.
Faced with a sweeping empirical generalization that is alleged to challenge
the possibility of a pure moral philosophy, Kant’s response is (1) to fully
grant the generalization; (2) to show how morality can accommodate the
generalization within a new, more complex end, one that nonetheless
maintains the priority of morality; and then (3) to argue that all we need to
show is that we recognize the end as one that we ought to achieve. If that is
so, then morality is valid in practice, even in the face of the supposedly
damaging empirical fact.
I have stressed the form of this argument because it is crucial for under-
standing Kant’s discussion of Hobbes in the subsequent section. Although
that section of the essay is framedas an argument “against Hobbes,” Kant
does not, as in his reply to Garve, begin with Hobbes or with the objection
he is trying to rebut. Instead he starts by simply asserting the claim that the
original contract is an end in itself, an end that all human beings ought to
have.30 By immediately specifying this end, Kant is effectively already at
step (3) in the strategy of the reply to Garve, leaving us to wonder who or
what Kant is arguing against in this section. But if we keep the earlier argu-
mentative strategy in mind, we can work our way to an answer to this ques-
tion. In this section the original contract plays a role analogous to the
highest good in the previous section: it is a more complex end that reflects
the adaptation of morality to certain general empirical conditions.
What kind of adaptation is going on in this case? Kant is clearest about
this at the start of his “Conclusion” to the section, when he writes that the
original contract is
only an idea of reason, which, however, has its undoubted practical reality,
namely to bind every legislator to give his laws in such a way that they could
have arisen from the united will of a whole people and to regard each subject,
insofar as he wants to be a citizen, as if he has joined in voting for such a will.
For this is the touchstone of any public law’s conformity with right.31
The crucial sentence here is the last one, which explains the original con-
tract not as an immediate moral end, but as a more complex end arising
from the combination of the fact of public law with the more basic princi-
ple of Recht (right).32 As Kant explains in the immediately preceding dis-
cussion, Recht is the most basic moral principle governing the use of our
external freedom: it tells us that we can legitimately use our bodies and
external objects in ways that are consistent with the possibility of the simi-
lar exercise of external freedom by all others.33 Since the restriction of
as the allegedly worldly “statesman” would like to tell us, and in the realm of
power politics, the morally earnest “academician” like Kant has no place.
Again, it is important to emphasize that Kant does not try to respond to
the objections that structure this essay by denying the empirical fact
emphasized by his opponents. Politics really is the exercise of power, but
this does not invalidate moral claims in politics. The united will of the peo-
ple is both a moral ideal and an exercise of power, and even if no actual
government can ever be said truly to reflect the united will of the people, it
is nonetheless true that this is what every actual government must at least
claim itself to be. For every actual government can and must present itself
as more than a coercive force, as qualitatively different from the criminal
acts it seeks to punish. And there is no way to make this distinction without
making the moral claims that the “statesman” would like to deny. State
power is not, and cannot be, outside of the moral framework that is estab-
lished in the original contract. It is precisely this point that is the occasion
for Kant’s explicit criticism of Hobbes.
Hobbes argues that the covenant that establishes a government by insti-
tution creates a moral framework in which individuals have transferred
their rights to a sovereign power, and are therefore obligated to obey the
sovereign’s laws, at least as long as the sovereign is able to protect them. But
the sovereign, Hobbes insists, is and must be outside of that moral frame-
work. “According to him,” Kant explains, “a head of state has no obligation
to the people by the contract and cannot do a citizen any wrong (he may
make what arrangements he wants about him).”36 For Hobbes, this free-
dom from obligation follows from the sovereign’s special role as the guaran-
tor of the laws of nature, of all contracts.37 For Hobbes, the laws of nature
are grounded in contract, and contracts are not valid without the reason-
able expectation of performance on the part of the other party, an expecta-
tion that does not exist in the state of nature, where individuals are free to
defect without fear of punishment. The sovereign’s role is to punish defec-
tors, but just for that reason, the sovereign cannot be bound by any contrac-
tual obligation, because if the sovereign were to defect, there would be no
one to punish that defection (without creating a kind of super-sovereign,
who in turn would pose the same problem). Kant agrees with this last line
of thinking: he spends a good many pages just prior to his discussion of
Hobbes denying that anyone is ever justified in resisting the sovereign.38
But he denies that the incoherence of a right of resistance frees the sover-
eign from all obligation: “[Hobbes’] proposition would be quite correct if a
wrong were taken to mean an injury that gives the injured party a coercive
right against the one who wronged him; but stated so generally, the propo-
sition is appalling.”39 As the only legitimate use of coercive force, state
power cannot be legitimately resisted, but precisely because state power is
supposed to be legitimate power, it must present itself as the common will
of the citizenry, upholding the idea of Recht. Otherwise, argues Kant, our
obligation to obedience makes no sense: “A nonrecalcitrant subject must be
able to assume that his ruler does not want to do him any wrong.”40 This
assumption has an important consequence. It admits the possibility of the
ruler’s wronging his or her subjects – while always understanding this as
something that the ruler would not desire. Hence it is always appropriate
and even necessary for a subject to call attention to the injustice of any
laws, to correct the “error” or “ignorance” of the sovereign, who ought to be
grateful for the opportunity to correct his or her mistakes.41 Restrictions on
freedom of speech, then, which Hobbes had accepted as part of the sover-
eign’s absolute authority, are thus illegitimate: “freedom of the pen … is the
sole palladium of the people’s rights.”42
Let’s summarize the results of this reading. The “statesman” is wrong that
the essentiality of power to politics makes morality irrelevant to politics,
because an equally essential feature of political power is its claim to author-
ity, which in turn implies an acknowledgment of the idea of the original
contract, the idea that laws are the product of a common will. If this is so,
then Hobbes is wrong that the sovereign stands outside of the moral frame-
work of the contract that applies to its citizens. Instead the sovereign must
accept the obligation to legislate in a way that is consistent with the possi-
ble consent of all citizens, and permit and even welcome the advice and
criticism of the public.
What are the implications of this reading for the contemporary debate
about Kant’s relation to Hobbes’ voluntarism? On the one hand, it is clear
that Kant does not regard the original contract as an act of any group of
people at any given time. Rather, it is a moral idea that attaches to the very
idea of legal authority. By contrast, it seems clear that Hobbes does regard
the establishment of government and the moral requirement of obedience
as a voluntary act, as the making of a contract by the citizenry. The volun-
tary act is of course clearest in his description of government by institution,
but precisely for this reason, Hobbes is at pains to argue that other forms of
government are sufficiently analogous to a government by institution. Thus
he argues, in his account of government by acquisition, that even submis-
sion to a conqueror is the making of a valid contract, since it proceeds, just
as the contract to institute a government does, from the fear of death.43
And he also argues that paternal dominion, the authority of a parent who
protects a child in the helplessness and vulnerability of infancy, is analo-
gous to the authority of a conqueror: in each case, it is rational for us to
accept the dominion of a powerful protector to escape an immanent
death.44 The consent of an infant to paternal dominion is clearly hypotheti-
cal rather than actual, but Hobbes does mean for us to conclude that we
would have consented to the choice that was made for us in infancy. If that
argument is allowed, then we could equally allow an analogous form of
consent to the actual governments that had already “conquered” us when
we were put into their dominion as infants. Even if we did not institute our
own governments, Hobbes is arguing, we are obligated to obey their laws
through a contract of our own making, through a kind of voluntary act.
All of this would seem strongly opposed to Kant’s views. But on the other
hand, we also need to recall, from our opening discussion of Hobbes, that
his voluntarism is also a form of conventionalism. That is, what is estab-
lished when something is made good or obligatory is a kind of convention
that defines, using language, a normative standard for a given audience. To
focus just on the political level: for Hobbes, the act of making the social
contract is an act of designating certain speeches of a certain person, or
group of people, as legally binding standards of conduct. To be a member of
a commonwealth, then, is to understand the convention that those speeches
have the power to command obedience. Now though he denies that politi-
cal authority needs to have been brought about by a voluntary act of actual
citizens, Kant agrees with Hobbes that political authority is a convention of
43 Leviathan II.XX, 127-128. On Hobbes’ account, if covenants made under threat of death
were invalid, then all covenants would be invalid, since the fear of death is the original
impulse for covenant.
44 Leviathan II.XX, 128-131.
L. Krasnoff / Hobbes Studies 25 (2012) 43–65 59
just this kind. To understand this, we need only review the derivations we
have already sketched for the moral ideas of Recht and the original con-
tract. We have seen that Recht is the idea of the legitimate use of external
freedom, consistent with similar freedom for all others. As that last sen-
tence should suggest, that idea can be defined without reference to any
convention. But there is no state of Recht – that is, no act can be described
as in fact rightful – without a public convention that declares what is and is
not lawful.45
The reason for this is what Recht regulates is coercion, and every use of
external freedom is at least potentially an act of coercion. If I intend to
make use of an object, I thereby threaten to prevent others from using it. If
I am morally motivated, I will reflect before using the object whether my
use of the object could be consistent with a legal order that permitted oth-
ers to use similar objects in similar ways. But no moral deliberation in my
own head can eliminate the coercive effect of my going on to actually use
the object. For Kant, there is an essential asymmetry between the moral
and the political realms on just this point. In the moral realm, what is cru-
cial is the internal use of freedom, an agent’s adoption of maxims of
choice.46 Again, if I choose to make use of a particular object, I will do it on
the basis of some maxim that explains the reason for my choice, and if I am
morally motivated, I will go on to ask whether my maxim of choosing the
object for that particular reason could be consistent with all others’ adopt-
ing a maxim of using similar objects for the same purpose.47 That moral
question can be resolved within the private realm of deliberation, because
if the answer to the hypothetical universalization test is affirmative, then it
will be possible for another person to adopt a similar maxim, and nothing
in their internal freedom, nothing in their ability to adopt the maxims they
choose, will be affected by my adopting my maxim. But in the political
realm, what matters is external freedom, whether my use of coercive force
is consistent with equal use of coercive force by all others. That my use of
45 The argument that follows can be usefully compared with the reading of T. W. Pogge,
“Is Kant’s Rechtslehre Comprehensive?,” Southern Journal of Philosophy 36 suppl. (1997), 161-
188; this essay can also be found in revised form as “Is Kant’s Rechtslehre a ‘Comprehensive
Liberalism’?,” in M. Timmons (ed.), Kant’s Metaphysics of Morals: Interpretive Essays (Oxford:
Oxford University Press, 2002) and in E. Ellis (ed.), Kant's Political Theory: Interpretations and
Applications (University Park: Penn State University Press, forthcoming, 2010). Pogge’s
description of Rechtslehre as a kind of “game” is quite analogous to what I am calling a “con-
vention” here.
46 Kant, RL 383-385 [6:219-220], 379-380 [6:225-226].
47 Kant, RL, 379-380 [6:225-226].
60 L. Krasnoff / Hobbes Studies 25 (2012) 43–65
the object could be consistent with a legal order in which I was permitted to
use the object, and all others were permitted to use similar objects, does
not eliminate the fact that, in the absence of such an order, that I am simply
using the object, and thereby at least potentially coercing others.48 While
some maxims of using the object are consistent with others freedom to
adopt those maxims, any use of the object is a limitation of others’ external
freedom, a form of coercion, which can only be made legitimate by an
actual, coercive law that permits all to use the object in legally specified
ways.49 This is the argument that Kant makes, in the Rechtslehre, for the
claim that rights to objects in a state of nature are only provisional, even if
they are exercised by morally conscientious individuals.50 It explains why
Kant believes that Recht not only can but must be instantiated in an actual
legal authority, understood as having the power to coerce. Since coercion is
an ineliminable feature of any exercise of external freedom, the only right-
ful coercion is equal coercion, and there really is equal coercion only if every-
one really is equally coerced – that is, only if all uses of coercion, even the
acts of private and morally conscientious individuals, are backed with the
force of public law.
But this very same point implies that the sole difference between rightful
and wrongful coercion is the public convention designating an act as law-
ful. Since all my uses of my external freedom are potentially coercive, even
if my maxims conform to universal law, what legitimates my use of coer-
cion is the shared understanding that I am acting within the limits of what
I and my fellow citizens acknowledge to be the authoritatively enacted
law. Just as Hobbes had argued, there are no juridical laws that are naturally
binding; the practical force of Recht comes from its enactment by an actual
sovereign. Both Hobbes and Kant hold a positivist or conventionalist view:
the law is what the sovereign declares it to be. But the sequence of Kant’s
argument is in an important respect different from Hobbes’. For Hobbes,
the conventions of law follow from an act of collective willing: the
51 J.-J. Rousseau, Discourse on the Origin of Inequality, in The Basic Political Writings, ed.
D. A. Cress (Indianapolis: Hackett, 1987), 25-109; D. Hume, “Of the Original Contract,” in
Essays: Moral, Political, and Literary (Indianapolis: Liberty Fund, 1985), 452-473.
62 L. Krasnoff / Hobbes Studies 25 (2012) 43–65
Can this analysis of Kant’s political philosophy have implications for the
contemporary debates about voluntarism and moral autonomy? It seems
much easier to accept a conventionalist account of politics, which requires
positive law, than of morality, which is supposed to be independent of any
legislator’s commands. It is true that Kant’s account of the convention of
political authority is independent of any positive law; the idea of social
contract is binding on any sovereign. But this may be just because moral
ity itself is universally binding, and as we have already seen, Kant thinks
that moral deliberation can be conducted privately, in one’s own con-
science, without any shared recognition of any common standard. Kant of
course does think there is a common standard of morality, the principle
of universal law, but this standard does not seem to depend on any sort of
convention.
But once again this appearance is deceptive. If we reflect more deeply on
Kant’s principle of universal law as a common standard of morality, we can
see that it has a conventional structure that closely parallels the structure
of Recht as represented in public law. In the political case, public law is a
convention that by its nature stands for the idea of equal external freedom
for all persons. In the moral case, Kant’s categorical imperative, the princi-
ple of universal law, is a convention under which individual’s universaliz-
able maxims are allowed to stand for the idea of fully justified principles of
practical reason. I have developed and discussed this point more fully in
other contexts; here I will only be able to provide a brief sketch.54
The main problem with Ameriks’ and Kain’s realist objections to
Schneewind and Korsgaard is that it is very difficult (and I suspect, ulti-
mately impossible) to provide a realist interpretation of Kant’s claim that
rational beings have unconditional value. For what is the fact to which the
realist can point to support this claim? It cannot be the fact of our having a
will, because this would lead to the kind of subjectivism that Ameriks and
Kain are trying to resist: that the principles adopted by rational beings have
value because they willed them. Agents’ choices are not of value in them-
selves; rather they are of value only if they are rationally chosen, i.e. chosen
according to universal law. So a realist Kantian has to say that what is of
unconditional value are universal laws themselves; there are principles of
practical reason that are true in some independent sense, and persons have
unconditional value insofar as they are able to grasp and act on these prin-
ciples.55 The problem with this view, or at least with a realist version of the
view, is that it is not clear that Kant ever identifies or establishes his cate-
gorical imperative as a universal law in itself, as opposed to a principle that
affirms the value of conforming to universal law. That is, there is an impor-
tant gap between the idea of a principle that is binding on every rational
being, and the idea expressed in the categorical imperative, which tells us
to act only on maxims that could serve as principles for every rational being.
Universalizable maxims are only potential candidates for universal laws,
not universal laws in themselves. When Kant derives his principle of uni-
versalizability, he never shows it, through any sort of argument, to be a uni-
versally valid principle. Rather he simply points out that this principle
appeals to nothing more than the idea of being a universal law, with no
extraneous content. But possible conformity to universal law is merely a
necessary condition of being a fully valid (universally binding) principle of
practical reason. By identifying the principle of universalizablity as the
sole categorical principle, Kant is effectively treating this necessary condi-
tion of practical reason as also a sufficient condition. And there is no realist
56 See the passage deriving the formula of universal law in the first chapter of the
Groundwork of the Metaphysics of Morals, in Practical Philosophy, trans. M. Gregor
(Cambridge: Cambridge University Press, 1996), 56-57 [4:402]: “Since I have deprived the will
of every impulse that might arise for it from obeying some law, nothing is left but the con-
formity of actions as such with universal law, which alone is to serve the will as its principle;
that is, I ought never to act except in such a way that I could also will that my maxim should
become a universal law. Here mere conformity to law as such, without having as its basis
some law determined for certain actions, is what serves the will as its principle, and must so
serve it, if duty is not to be everywhere an empty delusion and a chimerical concept.” Here
Kant speaks (twice) not of what the will’s principle is, but only of what must serve the will as
its principle.
L. Krasnoff / Hobbes Studies 25 (2012) 43–65 65