LEGITIMATING LEVIATHAN:

HOBBES, ROUSSEAU, AND KANT

David Zuluaga Martínez

A DISSERTATION

PRESENTED TO THE FACULTY

OF PRINCETON UNIVERSITY

IN CANDIDACY FOR THE DEGREE

OF DOCTOR OF PHILOSOPHY

RECOMMENDED FOR ACCEPTANCE BY

THE DEPARTMENT OF POLITICS

Adviser: Philip N. Pettit

June, 2018
© Copyright by David Zuluaga Martínez, 2018. All rights reserved.

ii
ABSTRACT

This dissertation offers a comprehensive interpretation of the political philosophies

of Thomas Hobbes, Jean-Jacques Rousseau, and Immanuel Kant, and highlights some

common principles of their theories of state legitimacy. While the respective parts of the

dissertation can be read as freestanding monographs, they jointly illustrate the appeal of a

specific understanding of the problem of political legitimacy. Hobbes, Rousseau, and Kant

took legitimacy to be about the right to perform as a state—the right, that is, to be the sole

entity authorized to act and speak in the people’s name. Notably, they believed that this right

was conceptually independent from the quality of the state’s performance. For these early

modern thinkers, legitimacy is a normative property that cannot be ascribed to states merely

as a function of the degree to which they exercise their coercive power in accordance with

principles of social justice.

The distinction between legitimacy and justice as independent dimensions of political

evaluation is exegetically illuminating in the context of Hobbes, Rousseau, and Kant.

Furthermore, it is an important philosophical and practical insight in its own right. In this

regard, Kant’s political philosophy stands out as a model for constructing a theory of

legitimacy that captures the fact that a peaceful, orderly, and law-bound social world—a

Rechtsstaat—is an enormous achievement worth protecting despite the injustices with

which it can often coexist.

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ACKNOWLEDGEMENTS

I first want to thank Princeton University and the Department of Politics for all that I

have learned as a graduate student here. I am especially grateful to Professor Philip Pettit,

my academic advisor since I joined the doctoral program in political theory. In addition to

his scholarly mentorship, I have been fortunate to receive his counsel and support when I

needed it most.

I have also been lucky to have Professors Alan Patten and Stephen Macedo as

members of my dissertation committee. Their suggestions and criticisms were invaluable to

bringing this project to fruition. The hardest step in this process was writing the first draft

of the first page. I am grateful to the University Center for Human Values and its director,

Professor Melissa Lane, for providing me with the perfect environment to do just that.

I am also deeply indebted to my fellow graduate students, whose thoughtful

comments (and objections!) to my views have been enormously enriching. I owe special

thanks to those who have served as commentators on my written work during my time at

Princeton, especially Christopher Ro and Lucia Rafanelli.

Above all, gracias, papá y mamá, por su apoyo de siempre. Y a ti, Cris, que te la patinaste

íntegra con tanto amor, con tanta paciencia.

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ARCANA IMPERII

Originally power was scattered in one place, aura and miasma.

Then it was joined in Melchizedek, priest and king.
Then it was divided between a priest and a king.
Then it was joined in a king.
Then it was divided between a king and a law.
Then it was joined in the law.
Then the law was divided into many rules.
Then the rules were scattered everywhere.

ROBERTO CALASSO
The Ruin of Kash

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CONTENTS

INTRODUCTION 1

POLITICAL AUTHORITY 1
LEGITIMACY AND OBLIGATION 6
PERSPECTIVES ON LEGITIMACY 8
THE RIGHT TO PERFORM AS A STATE 13
HOBBES, ROUSSEAU, AND KANT 17

PART I. HOBBES 23

CHAPTER 1. NO JUSTICE, NO PEACE 24

1.1 HOBBES’S FEAR 24
1.2 THE WAR OF ALL AGAINST ALL 28
1.3 THE IRRATIONALITY OF JUSTICE 40
1.4 TWO PUZZLES ABOUT OBLIGATION 46
CHAPTER 2. ASSURANCE AND AUTHORIZATION 59
2.1 TRUST IN FEAR 60
2.2 THE ROLE OF THE SOVEREIGN 67
2.3 CONSENT, FEAR, AND VOLUNTARINESS 73
2.4 TWO MODELS OF AUTHORIZATION 81
CHAPTER 3. LEVIATHAN’S PERSONALITY 87
3.1 THE THEORY OF PERSONATION 90
3.2 POLITICAL PERSONS 106
3.3 THE PROBLEM OF THE MAJORITY 116
3.4 UNDIVIDED SOVEREIGNTY 122
3.5 ABSOLUTE SOVEREIGNTY 129
3.6 OBEDIENCE SHORT OF ABSOLUTE 140
3.7 MIGHT AND RIGHT 146

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PART II. ROUSSEAU 157

CHAPTER 4. FREEDOM AND CIVILIZATION 158

4.1 FEAR OF UNFREEDOM 158
4.2 THE STATE OF CIVILIZATION 165
4.3 FREEDOM, CIVIL AND MORAL 188
4.4 A NEW SOCIAL CONTRACT 212
CHAPTER 5. THE REPUBLIC OF THE GENERAL WILL 223
5.1 THE SOVEREIGN PEOPLE 225
5.2 THE GENERAL WILLS 246
5.3 BRAVE FREE WORLD 266
CHAPTER 6. THEORETICAL PUZZLES, PRACTICAL BARRIERS 285
6.1 FORCED TO THE FREE 286
6.2 PETTIT’S DILEMMA 298
6.3 JUST LEGITIMACY 301

PART III. KANT 305

CHAPTER 7. MORAL FOUNDATIONS 306

7.1 TERTIUM QUID 306
7.2 DIMENSIONS OF FREEDOM I: “INNER” FREEDOM 315
7.3 DIMENSIONS OF FREEDOM II: “EXTERNAL” FREEDOM 332
7.4 THE MORALITY OF POLITICS 342
CHAPTER 8. EXEUNDUM EST E STATU NATURALI 359
8.1 HUMANITY AND INDEPENDENCE 360
8.2 FIAT IUSTITIA 377
8.3 POLITICS AS CRITIQUE OF FREEDOM 415
CHAPTER 9. THE REPUBLIC OF ENDS 421
9.1 WILLING OMNILATERALLY 422
9.2 THREE REPUBLICANISMS 446
9.3 PEREAT MUNDUS 458
9.4 A REALIST MORALISM 474

CONCLUSION 477

LIST OF ABBREVIATIONS 481

REFERENCES 483

vii
INTRODUCTION

This dissertation is about a strand of early modern reflection on the problem of

political legitimacy. The philosophers on whom I focus—Thomas Hobbes, Jean-Jacques

Rousseau, and Immanuel Kant—offered different accounts of what makes a state legitimate,

but they understood the nature of the problem in very much the same terms. Before turning

to their actual answers, it is worth situating the distinctive approach I attribute to Hobbes,

Rousseau, and Kant in the context of other ways of justifying the coercive power and

authority of the state.

Political Authority

Authority is a pervasive normative phenomenon. It structures numerous social

relations and interactions in all sorts of contexts. Parents and their children, teachers and

students, priests and parishioners, employers and employees—these are but the commonest

examples of relations of authority. A little reflection on the dynamics of such relations

suffices to unpack some of their most basic, common features. The first thing to notice is that

people in positions of authority typically expect obedience from the other party (or parties)

to the relationship. When an authority issues a directive, this is not intended as counsel or

advice; rather, the directive expresses something that the addressee ought to do or forebear.

Now the authority’s expectation of obedience is not predictive or probabilistic but normative.

An authority properly so-called does not wager that the addressee will heed a command with

1
such-and-such probability; rather, the fact of the directive being issued by the authority is

supposed to be a reason for obedience. (Of course, the authority may also hold predictive

beliefs about the likelihood that it will be obeyed, but the claim to be a source of reasons for

others is the distinguishing mark of authority as opposed to naked power or influence.) To

have authority is to be a source of reasons for action that are meant to be binding for the

addressees of the authority’s directives.

On this analysis, every relation of authority necessarily involves an obligation of

obedience, however defeasible: “the assertion that he has legitimate authority is nothing but

the imputation to him of a power to bind.”1 The obligation to obey is grounded in the

authority’s standing vis-à-vis the other party, and the bindingness of the authority’s

directives is (more or less) independent of the addressee’s opinion about their content. If

Jane is genuinely in a position of authority with respect to John, then Jane’s directives are

reasons for John to do or forebear whatever the directives indicate, independently of John’s

opinion about their content.2 Obviously, the reason-giving force of authoritative directives

has to be qualified, as authority is a domain-specific status and even within a given domain,

there may be degrees of authority. While a math teacher has the requisite standing to issue

directives to the students in her math class, she may lack the authority to tell those same

students what to do during their music class—and even during math class, her directives are

1 Raz 1986, p. 24.

2 This analysis coincides with what Raz calls the “preemption thesis”: “the fact that an authority requires
performance of an action is a reason for its performance which is not to be added to all other relevant reasons
when assessing what to do, but should exclude and take the place of some of them” (op. cit., p. 46). Notice that
while authorities often intend their directives to be taken as sufficient reasons for action, they are not
necessarily so. The preemption thesis strikes me as uncontroversial, though Raz’s “service conception” of
authority is not. The service conception follows from the preemption thesis in conjunction with the
“dependence” and “normal justification” theses (op. cit., pp. 48-56); embracing the preemption thesis (as I do)
does not commit one to the service conception as a whole.

2
only appropriate when limited to a certain domain of her students’ actions and choices. This

is just to say that the legitimate expectation of obedience characteristic of relations of

authority is by no means absolute. Nobody is an authority simpliciter because authoritative

standing is domain-specific. Authority is always characterized by a bounded jurisdiction,

however extensive it may be. We might say that the scope of a relation of authority is thus a

function of the authority’s jurisdiction (i.e. the domain of action over which its directives are

regarded as valid reasons for action), while its robustness depends on the extent to which

the normative expectation of obedience is preserved across variations in the content of the

authority’s directives.3

Every relation of authority seems to have this structure. But not every instance of

practical authority is properly speaking political. What is distinctive about the political case

is that individuals in positions of political authority are allowed to resort to threats and force

in order to exact compliance when willing obedience is not forthcoming.4 Political

authorities are not merely able to use force; they claim to be entitled to do so. Political

authority, like any instance of authority, comes with the claim that it is owed obedience, but

3 Because relations of authority may be more or less robust, it is obviously not the case that the obeying
party is obligated to obey every directive. The idea of an authority whose directives ought to be obeyed
whatever their content (literally) is itself very implausible, perhaps only appropriate to some views about the
nature of divine authority. It is critical, however, that the expectation of obedience be to some degree
independent of the contents of the directive. Otherwise, we would be dealing with cases of advice rather than
authority. (I take it that this is Raz’s point in saying that “one can have authority to do that which one ought
not to do… This situation is very familiar from the law of agency. Agents often have authority to bind their
principals in ways they should not. They can act wrongly in the exercise of their authority without forfeiting
it,” op. cit., p. 79).
4 Some theorists have argued that some of the authority relations I mentioned at the outset—especially
within the family and in the workplace—should be “politicized.” Often, the call for “politization” amounts to
the demand that the state should concern itself with a sphere of social life as falling within the scope of justice
and therefore as a proper object of public policy (see Okin 1989 and Anderson 2015 for such arguments in
favor of “politicizing” the family and the workplace, respectively). In that sense, of course the family and the
workplace are “political” institutions, that is, institutions fit to be the subject matter of political deliberation
and possibly state intervention. However, in the narrower sense of “political” that entails an authorization to
coerce, social relations within the family and the workplace are not (or ought not to be) political.

3
it is unique in making the further claim that lack of voluntary compliance makes individuals

liable to being coerced in order to bring their behavior in line with the authority’s directives.5

The paradigmatic case of a relation of political authority is the one traditionally

thought to obtain between a state and the individuals who fall under its jurisdiction.

Typically, a modern-day state claims jurisdiction over foreign nationals who permanently

reside within its territory, foreign visitors, and citizens (regardless of place of residence).

The state claims that (i) all these individuals have an obligation to obey its directives and

that (ii) failure to comply with them constitutes normatively sound grounds for the use of

force. Of course, the scope and robustness of the state’s authority differ depending on the

status of the individual in question. For instance, while the state has the authority to collect

income taxes from its citizens and permanent residents, it cannot do so from short-term

foreign visitors. Similarly, whereas a less-than-liberal state may claim an entitlement to

instruct what its citizens may or may not read, it could consistently refrain from issuing

directives of that kind to its temporary foreign visitors.

This is obviously an oversimplification, as modern states claim increasingly complex

and highly differentiated jurisdictional prerogatives depending on the kind of person (or

legal entity) with whom they interact in any given case. I only wish to note that my

discussion of early modern theories of legitimacy abstracts from the important theoretical

challenges posed by the contemporary distinction between citizens, permanent residents,

5 Whereas political authority entails the justified or authorized use of coercion (for certain purposes and
under specific circumstances), the converse does not hold. There are plenty of instances of justified uses of
coercion that do not presume authoritative standing. As Raz puts it, “The exercise of coercive or any other form
of power is no exercise of authority unless it includes an appeal for compliance by the person(s) subject to the
authority” (op. cit., pp. 25-26)—what I have referred to above as the legitimate expectation of obedience.

4
resident aliens, temporary visitors, and so on. It seems to me that the present-day category

of permanent resident (including residents who are also citizens) best approximates the

early modern understanding of a state’s relation to its “subjects,” all of whom were thought

to be under an obligation to obey the laws.6 The fact that modern states do not extend

citizenship rights to large numbers of permanent residents has given rise to intense

theoretical debates in recent decades. This distinction, however, was not nearly as salient

for Hobbes, Rousseau, or Kant; from the point of view of their theories of legitimacy, all

subjects who reside permanently within the state’s territory have the same normative

standing vis-à-vis public authorities.7

That states constantly claim the entitlement to coerce non-compliant subjects is

beyond question. In fact, the presentation, reiteration, and public validation of such claims

is one of the defining activities of political rule.8 The important philosophical question,

however, is whether such claims are ever justified. Is it true that citizens have an obligation

to obey the state’s directives or perhaps even support its political institutions? And if so, on

6 A good example of the early modern focus on long-term residency is Locke’s emphasis on the different
political status of “aliens” and “denisons” (see Simmons 2001 [1998], pp. 159-160, 168-171).
7 I focus primarily on obedience rather than the more demanding, selfless duties associated with
patriotism, loyalty, or allegiance. The distinction between the two sorts of normative demands is reflected in
the fact that a subject’s civitas did not always coincide with his or her patria, and so a person bound to obey the
laws of her country of residency could consistently feel a stronger emotional attachment and sense of loyalty
to another political community. Rousseau is a good example of this divide, as he seems never to have ceased
to think of Geneva as his patrie even after expressly renouncing its citizenship (his Letters Written from the
Mountain were published in 1764, a little over a year after he renounced his Genevan citizenship for the second
time). As Jean-Jacques tells Emile, even “he who does not have a fatherland, at least has a country” (E V, p. 473).
8 For an excellent sociological analysis of this activity of “legitimation” (of claiming to have legitimate
authority and hence an entitlement to coerce), see Barker 2001, pp. 30-41. Barker is absolutely right to call
attention to the fact that claiming to be a legitimate authority—claiming to “possess a distinguishing, specific
monopoly of the right to rule” (p. 24)—is a constitutive feature of empirical states, or actual political rulling:
“Self-legitimation is necessary for rulers. The legitimation of the unique identity of governers, and the
legitimation of governers by the enactment of their unique identity, is part of the continual rationalization of
rule. When this fails, government fails, it in fact ceases to be government” (op. cit., p. 65). The activity of
legitimation is of the greatest political importance because “what it is possible to do in politics is generally
limited by what it is possible to legitimize” (Skinner 1998, p. 105).

5
what grounds? And even if there were such an obligation, is the use of force to exact

compliance normatively defensible? Must citizens passively endure being coerced in

whichever direction the state sees fit?

Legitimacy and Obligation

These are some of the questions that lie at the heart of the problem of legitimacy. A

sate’s claims to possess authoritative standing, the consequent normative expectations of

obedience, and the accompanying entitlement to coerce in order to ensure compliance are

defensible only if the state is legitimate. And legitimacy cannot simply be a matter of the

state’s actual success at imposing its rule on subjects thanks to its overwhelming power. If

we think of states as sociologically determinate entities (such that they can be individuated

on a purely descriptive basis), then legitimacy is a normative attribute that they may either

lack or possess.9 To be sure, every state puts itself forward as legitimate, but whether this

universal self-presentation of political power is true depends on any given state’s passing

the test of certain normative criteria. The theory of legitimacy spells out those criteria and

thereby sets the justificatory bar to assess the validity of any claim to political authority.10

9 Drawing on Weber’s classic definition of the (modern) state as a “community that (successfully) claims
the monopoly of the legitimate use of force within a given territory” (Weber 1948 [1918], p. 78), we could
scratch the word “legitimate” to obtain a purely descriptive account of statehood. Contemporary political
science tends to proceed with a Weberian notion of the state in mind, such that its “essence” is “the intersection
of politically organized coercive and symbolic power, a clearly demarcated core territory, and a fixed
population on which political decisions are collectively binding. Thus the key feature of the state is the
historically variable ensemble of technologies and practices that produce, naturalize, and manage territorial
space as a bounded container within which political power is then exercised to achieve various, more or less
well integrated, and changing policy objectives” (Jessop 2008, p. 113).
10 Weber’s influential definition of the state (see p. 6n9) explains the popular idea that state authority is
justified if and only if subjects or citizens believe that it is justified. These “Weberian” theories of legitimacy
insist that “there are not two separate things, ‘legitimacy’ and ‘belief in legitimacy’” (Barker 2001, p. 19). Such
theories take one of two forms. The eliminativist version—hardly a theory of legitimacy at all—denies that

6
The theory of legitimacy has significant implications from two practical points of

view. On the one hand, since states normally claim to be the only political authorities with

powers of rule-making and enforcement in a given territory, one’s assessment of their

normative standing bears on what “outsiders” may or may not do in relation to the political

community. More specifically, if a state is legitimate, then outsiders stand under an

obligation not to intervene with the way it conducts the common affairs of the people living

under its jurisdiction. External legitimacy is the normative attribute of states that grounds

such a duty of non-intervention. On the other hand, states lay particularly demanding claims

upon their own subjects, who are often asked to proactively cooperate with and support

whatever the state does (allegedly) in pursuit of the public good. Looked at from “within,” if

a state is legitimate, it is entitled to rule over the lives of its subjects, and they are obligated

to obey its directives. Internal legitimacy is the normative attribute of states that grounds

there is any normative question to be asked over and above the observed fact of (widespread) belief in a state’s
legitimacy (e.g., “The notion of a legitimate society thus has no meaning,” Bourricaud 1987, p. 67 [ emphasis
added]). The reductivist kind of Weberian theory admits that the normative question is intelligible, but
ultimately reducible to belief in legitimacy. For the reductivist Weberian, the empirical fact of belief in
legitimacy constitutes the normative property of legitimacy. This is Jonathan Waskan’s view, for whom
legitimacy “has an inherently normative character” even though “the empirical theorist [of legitimacy] simply
refuses to prescribe what those conditions on acceptance and rejection ought to be” (1998, p. 42). Waskan’s
reductivism is motivated by the thought that “rationally deducing the a priori conditions of a state’s
acceptability from the philosopher’s armchair seems the height of vanity” (p. 43).
The very activity of legitimation gives the lie to the eliminativist suggestion that there is no normative
standard that states are (however hypocritically) aiming to live up to. As for the reductivist option, it faces the
enormous difficulty of explaining how belief in legitimacy could possibly be sufficient to constitute a normative
property; it seems far more plausible to think that belief in legitimacy is a response to the observation that the
states in fact lives up to certain normative criteria (see Simmons 2001 [1996a] for a general critique of
arguments from “identification” such as these). Waskan’s reductivism in particular is wrong to assume that the
only alternative is some “a priori deduction” of normative standards. (To be clear, Weber did not defend either
view, as he admitted that “there is no causal relationship between the normative validity of an order in the legal
sense and any empirical process… But for sociological purposes, as distinguished from legal, it is only the
probability of orientation to the subjective belief in the validity of an order which constitutes the valid order
itself,” 1978 [1922], Vol. 1, p. 33.)
Rejecting both eliminativist and reductivist Weberian views is nevertheless consistent with belief in legitimacy
being a necessary condition of legitimacy. Belief in legitimacy can be incorporated into normative accounts of
legitimacy as a precondition for a state’s ability to do its job (e.g., Raz 1986, pp. 55-57), or as a warranted
inference from observed acquiescence or underlying consent (as in Hobbes’s view of imputed consent, which I
discuss in Chapters 2.3 and 2.4).

7
subjects’ duties not to undermine the state’s integrity, to obey the law, and (arguably) to

cooperate in the realization of common purposes led by public authorities. In short, internal

legitimacy is the basis of political obligation.

The interpretations of Hobbes, Rousseau, and Kant that I put forward concern their

views on internal legitimacy only. Thought they had interesting things to say about external

legitimacy and international relations more generally, most of their work as political

theorists focused on the “internal” challenge of justifying subjects’ obligations of obedience.

Their hope was to account for the theoretical possibility of political order and stability

without abandoning the fundamental distinction between naked, brute power and justified

rule. The theory of legitimacy does both things at once: by determining the conditions under

which coercive power can be defensibly exercised, it grounds subjects’ obligations of

obedience. As we shall see, Hobbes, Rousseau, and Kant were equally convinced that

legitimacy and obligation are two sides of the same coin.11

Perspectives on Legitimacy

This very general outline of the problem of legitimacy calls for further specification.

In particular, we should distinguish four perspectives that can be easily confused but are best

treated as conceptually independent.

11 Some scholars have argued that legitimacy does not entail political obligation (e.g., Applebaum 2010),
but this view would make it impossible—or at least pointless—to distinguish between de facto and legitimate
political authority (Raz 1986, pp. 25-27). The use of the concept of legitimacy is to specify under which
conditions people have an obligation to obey an authority. The view that legitimacy involves a “right to rule”
with correlative obligations of obedience remains the standard view among theorists and political scientists
(Barker 2001, p. 33; Simmons 2001 [1996b], pp. 106-107, and 2001 [1999], pp. 130; for an insightful discussion
and defense of the general correlativity between rights and obligations, see Raz 1986, pp. 170-172, 180-184).

8
THE EXISTENTIAL APPROACH. The first thing one might ask is whether the existence of

states as such is at all justifiable. This is often the line of inquiry pushed by social contract

theorists by setting up a “state of nature” as the default normative condition of human life.

The assumption is that individuals are naturally free and that any deviation from the

condition of equal natural freedom (i.e., the state of nature) needs to be justified. While there

are different ways to characterize the state of nature, the general idea is clear enough: the

justificatory baseline is the condition of natural freedom in which no one has the kind of

authority to coerce that entails a correlative duty of obedience on the part of others. In the

condition of natural freedom, there is no political authority. What is needed is an account of

how such a form of authority could ever be established as a normatively defensible departure

from the baseline condition of equal natural liberty. In other words, the existential approach

calls for a genealogical or historical story about the creation of legitimate states. Precisely

because such an account seems extremely hard to come by, several contemporary theorists

who have explored the existential perspective on the problem of legitimacy have been led to

endorse the anarchist thesis that no (actual) state is legitimate.12

THE RIGHT TO USE COERCIVE POLITICAL POWER. The problem of legitimacy takes a

different shape if one accepts the inevitability of living under a state’s coercive apparatus.

That people live subject to the power of states is a fixture of the modern world. Any attempt

12 A. John Simmons holds a version of this view: “another consequence of my conclusion… involves
denying that there are any governments which are legitimate (or which are legitimate with respect to large
numbers of citizens)” (1979, p. 196; see also 2001 [1996b]). Simmons’ denial refers to actual governments or
states to which most citizens have never consented, but his point is independent of the way in which the state
is structured and how it exercises its power. Simmons’ argument differs from Robert Paul Wolff’s (1970)
version of the anarchist thesis, for Wolff argues that only political authority exercised by “unanimous direct
democracy” is consistent with individual autonomy, rendering any other constitutional arrangement
analytically illegitimate.

9
to give a normatively satisfactory account of the emergence of states, while theoretically

interesting, is ultimately superfluous: as far as we can tell, human life will continue to be

structured by a plurality of states for the foreseeable future. (In any event, what would

follow from the conclusion that no state is justified in the existential sense? The futility of

the conclusion is betrayed by Simmons’ characterization of his anarchist view as

“philosophical,” which he implicitly contrasts with practical anarchism.13) Once reconciled

to the fact that states cannot be willed away, what we must ask is whether any given

institutional apparatus can justifiably back its directives with the (threat of the) use of force

while demanding obedience and cooperation from its citizens. There may never be a good

reason to bring about a state in the first place, but this leaves open the question whether

anything can be said for states as they already exist. On this view, we no longer require a

sound normative path from the condition of natural freedom to that of state-regulated life.

It would suffice to show that this or that state (as individuated by the appropriate

sociological criteria) can justify its claims to authority, obedience, and the use of coercion in

virtue of its structural (institutional) features, even if there can be no conclusive normative

argument for preferring life under a state to the condition of natural freedom.

THE RIGHT TO GOVERN. Modern states are constituted by institutions, which are in turn

structured by norms that define and specify institutional roles. Institutional roles must be

filled by particular individuals (or groups) whose doings are attributable to the state insofar

as they are undertaken in an official (i.e. norm-bound) capacity. The fact that institutional

roles must (ultimately) be filled by individual persons gives rise to a third take on the

13 Simmons 1979, pp. 194-195.

10
problem of legitimacy, which inquires into the appropriateness of those individuals’

accession to roles of political authority. Even when institutions are legitimate—in the sense

that they are authorized to wield coercive political power—, one may question whether the

individuals occupying institutional roles of authority have come to hold them in the right

way. Justifying the authority that attaches to the office is one thing; justifying the officer’s

entitlement to hold the office is another. Because particular persons can illegitimately

occupy otherwise legitimate institutional roles of authority—because there can be

usurpers—, we can (and often do) inquire into the legitimacy of government without thereby

calling into question the legitimacy of the state. For example, when electoral fraud is

discovered in a democratic state, the office-holders are dismissed without anyone having to

question the normative credentials of the background constitutional arrangement.14

NORM-SPECIFIC JUSTIFIABILITY. Suppose one believed that there is an argument that

justifies the existence of states as such; that there is a sound normative account of why some

institutional structure in particular has the right to back its directive with the (threat of the)

use of force; and even that the particular individuals who happen to occupy the institutional

roles of authority came by them in an appropriate way. Still, the possibility remains that the

state’s directives themselves—its laws, decrees, policies, judicial decisions, and so on—are

unjustifiable in virtue of their content. A state that is legitimate in all the senses described

above can nevertheless issue normatively invalid directives. This last approach to the

14 Simmons believes that although “Governments can presumable be illegitimate even where the states
they govern are not,” an illegitimate state could not, I think, have a legitimate government” (2001 [1999], p.
130). I am not sure this is correct. Even when an institutional apparatus lacks the right to use coercive political
power, there may be contexts in which it is important to ascertain who has the right to govern. Simmons may
just be making the obvious point that the normative standing of the rightful government of an illegitimate state
is not the same as that of a legitimate state. But state illegitimacy does not make it irrelevant to inquire into
who has the right to hold which offices per the background constitutional rules.

11
question of legitimacy focuses on specific state commands and evaluates either (or both)

their content and the procedures through which they are adopted. Justifying “an individual

measure” is not the same as “the justification of the use of public power over a range of issues,

for an extended period of time.”15

Although no doubt interrelated, these four perspectives on the problem of legitimacy

are conceptually distinct. While a complete theory of political legitimacy should probably

address them all, it is possible to individuate them for analytical purposes. In fact, there are

good practical reasons to focus on some of these perspectives rather than others. If we hope

our understanding of state legitimacy to have any practical import, it is worth asking which

perspective most clearly interprets the justificatory challenges that commonly arise in

political life. In my view, this question points to the version of the problem of legitimacy that

focuses on the normative conditions for the justifiable use of coercive political power. While

the existential problem is conceptually prior (and has attracted much academic attention),16

it strikes me as sterile from a practical point of view. As Hume noticed long before

contemporary theorists like Simmons and Wolff, the existential approach to the question of

legitimacy seems bound to yield anarchical conclusions.17 But respectable though its

theoretical credentials may be, it is unclear what citizens ought to do upon being persuaded

of the truth of philosophical anarchism. Franklin’s famous dictum—“In this world nothing

15 Raz 1986, p. 73.

16 Clearly, a negative answer to the existence problem entails that there cannot be a satisfactory
justification for the use of coercive political power. If no state can justifiably exist, then a fortiori no state can
justifiably exercise its coercive power for any ends whatsoever.
17 Hume clearly saw the difficulties of attempting to account for state legitimacy by appeal to a consent-
centered genealogical or historical explanation of the emergence of the state: “My intention here is not to
exclude the consent of the people from being one just foundation of government where it has place. It is surely
the best and most sacred of any. I only pretend that it has very seldom had place in any degree, and never
almost in its full extent. And that therefore some other foundation of government must also be admitted” (1994
[1748], p. 192).

12
can be said to be certain, except death and taxes” 18—is a sober reminder that we cannot

reasonably expect to elude the grip of the state. The hope is that we may come to live under

the rule of a legitimate one.

The Right to Perform as a State

Having set the existential perspective aside, it is worth distinguishing two families of

views that try to account for the conditions under which the coercive apparatus of the state

can be justifiably deployed.

The first approach holds that the state’s use of coercion and citizens’ political

obligations can only be justified by reference to the quality of the state’s performance. This

is the standard utilitarian view of legitimacy. For a classical utilitarian like Bentham, the only

relevant metric of political evaluation is an institution’s tendency to bring about a desired

state of affairs; the “how” has no intrinsic significance at all. Though not in so many words,

this also seems to be the operative justification of political authority in much contemporary

political theory, even of a non-utilitarian persuasion. It is often assumed that coercion is

acceptable and the obligation to obey is valid only when the state’s power is directed at

morally appropriate ends, where those ends are usually specified in terms of distributive or

social justice.19 On this view, the normative standing of legitimate political authority is tied

to the content of the policies, laws, decrees, and other directives issued by the state.

18 Franklin, 1907 [1789], p. 69.

19 This is, I think, true of Rawls’s A Theory of Justice (1999 [1971]), where he argues that “the more
fundamental” way “in which one may be bound to political institutions” is through the “natural duty of
justice”—a duty “to support and to comply with just institutions that exist and apply to us” (§19, pp. 99-100).
Institutions count as “just” and therefore as falling within the scope of the natural duty if and only if they comply

13
The second approach is based on the thought that the state’s right to use coercion and

demand compliance from its citizens depends instead on its right to perform as a state—

where this right is not straight-forwardly reducible to the quality of the state’s performance

as specified by some background theory of social or distributive justice. In other words, I am

suggesting that the right to perform as a state is at least in part independent of the state’s

policy goals and the outcomes it brings about, (un)just though they may be by the standard

of one’s favored account of distributive or social justice.

The distinction between the right to perform as a state, on the one hand, and the

quality of the state’s performance, on the other, is theoretically significant for at least two

reasons. First, because it allows for the possibility that states may be very good at promoting

a certain ideal of justice while being illegitimate, as in cases of “benevolent despotism.”

Second, because such a distinction clears the conceptual space for the view that legitimate

states can rightly command our obedience even when they fall short of meeting the demands

of justice. If we understand the justification of coercive political power in terms of the state’s

right to perform as such, then a logical gap opens between justice and legitimacy as relatively

independent normative attributes of political institutions.20

with, or embody, the principles of equal liberty, fair equality of opportunity, and the difference principle (§47,
pp. 266-267). At heart, this is a distributive standard for assessing the quality of a state’s performance, as
indicated by the “general conception of justice” of which Justice as Fairness is a “special case”: “All social
values… are to be distributed equally unless an unequal distribution of any, or all, of these values is to
everyone’s advantage” (§11, p. 54). So in the last analysis, whether we ought to obey any given state or not is
a function of the quality of that state’s performance in light of this general distributive rule.
20 Rawls clearly sensed the value of allowing for this conceptual gap by the time he wrote Political
Liberalism (1993). There, he took himself to be articulating “the liberal principle of legitimacy: our exercise of
political power is fully proper only when it is exercised in accordance with a constitution the essentials of which
all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals
acceptable to their common human reason” (IV.1, p. 137; emphases added). The main idea is that the principle
of legitimacy grounds political obligations even in the face of individual citizens’ judgments the specific state
acts or policies may be unjust. In Rawls’s own words, “A significant aspect of the idea of legitimacy is that it
allows a certain leeway in how well sovereigns may rule and how far they may be tolerated. The same holds under

14
The thrust of this distinction is not entirely lost to contemporary political theorists.

A. John Simmons, for instance, has argued that there indeed are two different takes on

political legitimacy: one focused on the history of the relations between individuals and the

state, another centered on the “quality of government.”21 The idea of the “quality of

government” obviously corresponds to what I call the quality of the state’s performance.22

However, the right to perform as a state as I understand it covers more theoretical ground

than Simmons’ restriction to “individuals’ political histories.”23 What he has in mind is that

the only alternative to the focus on the quality of the state’s performance is some story about

how the power of the state came to be—a story that must “be explained by delineating the

(actual and morally permissible) processes by which persons make the transition from the

natural to the political condition.”24 Simmons is thinking, as he repeatedly admits, in terms

of the Lockean paradigm according to which political authority can only be justified as a

rationally defensible deviation from the normative baseline of a pre-political condition of

natural freedom. Given his Lockean interpretation of the right to perform as a state,

Simmons collapses that approach with the existential version of the problem of legitimacy

as I have characterized it.25

a democratic regime. It may be legitimate… Yet it may not be very just, or hardly so, and similarly for its laws
and policies” (IX.5, p. 427; emphasis added).
21 Simmons 1979, pp. 44-45, 198.
22 I prefer to speak of “state” rather than “government” in this connection because the latter suggests that
we should focus on individual persons who occupy institutional roles of political authority, rather than the
institutions themselves.
23 Simmons 1979, p. 44.
24 Simmons 2001, p. vii.
25 This is to say that there is a substantive disagreement, not merely a terminological quibble, between
my and Simmons’s use of the term “legitimacy” in his influential essay, “Justification and Legitimacy” (2001
[1999]). In that article Simmons argues that “justifying” the state and showing a state of be “legitimate” are
two very different theoretical enterprises. To justify “the state” involves “showing that some realizable type of
state is on balance morally permissible (or ideal) and that it is rationally preferable to all feasible nonstate
alternative,” whereas legitimacy “turns on consent, on the actual history of that state’s relation with its

15
The important point to bear in mind is that the state’s right to exercise coercive

political power may be justified in a way that abstracts from the quality of a state’s

performance and focuses instead on its right to perform as a state, that is, on the credentials

that entitle a given state to act in the name of its subjects. And that sort of justification does

not necessarily have to be at the same time a solution to the existential problem of legitimacy,

as Simmons would have it. We may never find a way to justify the particular history or

genealogy of a set of political institutions, but we can perhaps find a way to vindicate their

authority if those institutions have the right structure.26 If constitutional structures rather

than actual (or hypothetical) genealogies can justify the right to perform as a state, then we

might have a plausible theory of legitimacy that leaves the existential problem unanswered

and addresses the justifiability of coercive political power independently of the content of

specific state policies.27

subjects” (pp. 126, 129). The issue in my view is that Simmons’s “legitimacy” makes it a matter of definition
that there can only be Lockean, voluntarist accounts of the right to perform as a state.
Per Simmons’s usage, it is trivially true that there are no valid non-voluntarist accounts of state legitimacy. We
would have to say of Raz’s theory of authority, for example, that it is not even trying to answer the question of
“legitimacy” because consent plays no significant role in the Razian justification of political rule (“consent can
only be held binding if it is so qualified that its effect is almost entirely confined to reinforcing independently
existing obligations to obey,” 1986, p. 90). Unsurprisingly, Simmons holds that Kant is “uninterested” (!) in the
problem of legitimacy (2001 [1999], p. 141n37) because consent plays no significant role in Kant’s account of
the right to perform as a state. I discuss this issue at length in Chapter 9.1; see also p. 436n16.
26 Again, Raz is a good example of this. He agrees with Simmons that states cannot be said to be legitimate
tout court; they are (il)legitimate only in relation to particular individuals, and to varying degrees (1986, p.
100). However, a Razian state’s right to perform as such is a function merely of how its institutional profile and
directives allow it to help its citizens “act on reasons which bind them” (p. 56). The state’s “history”—the
“history” of the state’s relation with each citizen—is irrelevant. Raz’s theory therefore does not purport to
answer the existential problem of legitimacy; rather, it is an interpretation of the right to perform as a state.
27 See Pettit 2012c for a clear example of this approach, one that I find particularly congenial.

16
Hobbes, Rousseau, and Kant

If I am right to think that the most fruitful theoretical approach to the problem of

legitimacy focuses on the grounds of the right to perform as a state, then it is important to

engage with some of the most ambitious historical efforts to justify political authority

precisely in this way. That is the animating purpose of this dissertation: to understand how

Hobbes, Rousseau, and Kant made sense of the state’s right to perform as such. I begin with

the work of Thomas Hobbes because he was arguably the first early modern philosopher to

develop a sophisticated theory of the state premised on the distinction between the right to

perform as a state and the quality of the state’s performance. For Hobbes, the state’s right to

perform as such depends, first, on its being authorized by the unanimous consent of its

subjects and, second, on its actual capacity to solve the problems of the state of nature as a

social world devoid of public authorities. Beyond that, the content of the sovereign’s

commands is immaterial to the legitimacy of the state. As I prefer to put it, the quality of the

state’s performance has no bearing on the sovereign’s right to rule or the subject’s

corresponding obligations to obey. Unsurprisingly, the Hobbesian subject is obligated to

obey every sovereign command however unjust it may be, provided only that it does not

directly compromise the subject’s right of self-preservation.

Rousseau and Kant shared Hobbes’s theoretical insight that the right to perform as a

state could be conceptually separated from the quality of the state’s performance. In

addition to this understanding of the problem of legitimacy, Rousseau and Kant also adopted

two of the key premises of Hobbes’s justification of political authority. The first was the

absolutist conception of sovereignty. Although Jean Bodin was the first to propose a secular

theory of absolute sovereignty, Hobbes greatly improved upon Bodin’s ideas by providing

17
stronger arguments for absolutism and working through its implications far more

consistently than Bodin himself. The second idea adopted by Rousseau and Kant (via

Pufendorf) was Hobbes’s novel understanding of group agency, of what gives a collection of

individual human being agential standing and unity as a group. This was one of Hobbes’s

most valuable theoretical innovations. Its political applications, especially concerning the

ontology of the people, are critical to understanding Rousseau’s and Kant’s theories of the

state—more so, I think, than even they themselves seem to have realized. Both Rousseau

and Kant followed Hobbes in thinking that a people could only exist as a unitary group with

agential standing by virtue of being represented or “personated” by a (unitary) state.

Without a state to act in its name, there could be no people; without a single sovereign with

the sole right to personate all of its subjects collectively, there is no group agent but merely

a multitude. Hobbes’s absolutism, his vindication of the reality of corporate or “moral”

persons, and his ontology of the people are central to Rousseau’s and Kant’s theories of

legitimacy.

Naturally, just as there are important continuities, there are also major

disagreements between Hobbes, Rousseau, and Kant. One in particular is worth flagging

from the start. Hobbes was primarily concerned with the conditions of possibility of a

political order that could avoid the calamities of a state of nature which he equated with a

state of war. Hobbes’s theoretical project has an eminently negative inclination and often

his views are best explained by the evils he sought to avoid rather than high, demanding

ideals he may have wished to advance. True to form, Hobbes defended a strictly negative

idea of freedom as mere non-interference: the “liberty of subjects” consists in no more than

“the silence of the laws” (L XXI.18). By contrast, Rousseau adopted a republican notion of

18
freedom as independence or non-domination—a more robust, affirmative ideal that enabled

him to build a theory of the state around the question, what must political life be like if people

are not going to be subject to the arbitrary will of others? Like Rousseau, Kant made the idea

of non-domination (what he called “external” freedom) the normative cornerstone of his

political philosophy. But unlike Rousseau, Kant seems to have been far more sensitive to the

traditional Hobbesian preoccupation with the avoidance of violence and instability. As I will

argue in Part III, Kant’s view of legitimacy can be read as an attempt to reconcile Hobbes’s

stern realism with Rousseau’s passionate commitment to a robust conception of individual

freedom. The way in which Kant achieved this is precisely by detaching his more demanding

republican ideals from the necessary conditions for political institutions to have the right to

perform as states.

My readings of Hobbes, Rousseau, and Kant follow two simple interpretive rules.

First: each individual argument should be reconstructed in the most logically compelling way

that is consistent with the texts. Second: the individual arguments must add up to a

systematic political theory that is consistent with the bulk of an author’s corpus. My

approach is philosophical in that I focus on the arguments and how they fit together to form

complete theories, but it is also historical in that I make no attempts to “modernize” an

authors’ views. I take myself to be offering an account of what Hobbes, Rousseau, and Kant

actually thought about state legitimacy, not a proposal for what a Hobbesian, Rousseauian,

or Kantian might think about state legitimacy. There is much to learn from Hobbes’s,

Rousseau’s, and Kant’s substantive ideas about political justification—I would not have

undertaken this project if I did not believe that—, but I have not made a point of seizing every

opportunity to showcase the contemporary relevance of their ideas. Judith Shklar said it

19
better than I could: “If one has a sense for abiding as well as temporary human concerns, and

if one is not convinced that, intellectually, the latest is also always the best, and lastly, if one

regards reflection and observation as self-justifying activities, then one will see the relevance

of the history of political theory without difficulty.”28 With that being said, let me offer a very

brief statement of some of the central interpretive thesis I advance in this text.

PART I: HOBBES. I interpret Hobbes as a strict consent theorist of legitimacy and defend

the thesis that authorization—express or imputed—is in every case a necessary condition

for a sovereign to have the right to perform as such. In opposition to those who read Hobbes

as a de facto theorist of legitimacy, I argue that even cases of commonwealth “by acquisition”

(that is, conquest) rest on the actual (albeit imputed) consent of subjects. The truth in de

facto interpretations is that there is a second, empirical condition of state legitimacy, what I

call the effective protection condition. Unless a sovereign does in fact solve the problems of

social life in the state of nature, it does not even qualify as the sort of entity that can come to

perform as a state. The authorization and effective protection conditions are jointly

sufficient for state of legitimacy and neither has much to do with the quality of the

sovereign’s performance or “equity,” as Hobbes calls it. Equity and legitimacy are completely

independent normative attributes of state for Hobbes.

PART II: ROUSSEAU. Rousseau adopts Hobbes’s elaboration of the Bodinian paradigm

of absolute sovereignty and some of the key tenets of his political ontology, but departs from

Hobbes in defending an ideal of political freedom as non-domination. This shift in the

conception of freedom leads Rousseau to a comparatively more restrictive view of the

28 Shklar 1969, p. 215.

20
validating power of consent. In opposition to Hobbes (and Grotius), Rousseau affirms that

voluntary servitude is normatively contradictory. The impossibility of slavery contracts is

then used to argue against the possibility of transfers of sovereignty. Popular sovereignty is

thus a condition of legitimacy for Rousseau. Furthermore, since the point of political

association is to render interdependence consistent with civil freedom understood as non-

domination, a legitimate state cannot itself be a dominating entity. Rousseau’s institutional

proposal—what I call the Republic of the General Will—makes freedom possible through the

rule of law, shared collective control over the laws, and their administration by an

independent government. The procedures that make popular law-making a kind of non-

arbitrary imposition virtually ensure that the laws will effectively track a reasonable

conception of the common good. Since the laws of a legitimate state will for the most part be

just, the right to perform as a state goes hand in hand with the quality of the state’s

performance. Ultimately, the difficulty with Rousseau’s vision is that it demands a level of

political involvement and participation from the average citizen that seems out of touch with

the reality of modern society. Even on my reading, which de-emphasizes the role of virtue

and citizens’ psychological identification with the common good, the Rousseauian ideal is as

practically elusive as it is philosophically uplifting.

PART III: KANT. Kant effectively charters a middle course between Hobbes and

Rousseau. Like his predecessors, Kant is an absolutist about sovereignty, endorses the

Hobbesian ontology of the people, and rejects the constitutional model of the “mixed

constitution.” Though he endorses the same ideal of political freedom that inspired

Rousseau, Kant insists that it is consistent with forms of political authority far less

democratic than the Republic of the General Will. For Kant, the central institutional

21
requirement of political freedom is the rule of law. Provided we live under a Rechstaat as

opposed to a condition of barbarism or a pure state of nature, we must take our political

institutions to be authorized qua necessary conditions for the enjoyment of rights. The

Kantian conditions of legitimacy are still relatively minimal compared to Rousseau’s, but

they require much more Hobbes’s. Kant’s vindication of the authority of states is moral all

the way down: we ought to respect and protect the rule of law because it is indispensable for

the co-enjoyment of rights, and rights are necessary to live in accordance with the

unconditional value of humanity.

Kant was onto something. Of course, nearly all actual states are deeply defective

institutions. But some are more defective than others, and some “states” are no more than

naked, arbitrary power in institutional robes. It is to Kant’s credit that his theory of

legitimacy captures the qualitative leap inherent in the rule of law, which for him was the

foundation of the right to perform as a state.

22
PART I. HOBBES

23
CHAPTER 1. NO JUSTICE, NO PEACE

1.1 Hobbes’s Fear

Hobbes lived an unusually long life even by modern-day standards. Born mere

months before the Armada Invencible sailed for England in 1588, he lived through the signing

of the 1648 Peace of Westphalia that put an end to the Thirty Years’ War, the English Civil

War, and the Restoration of 1660. He died at age 91 in 1679. The many and profound

political transformations he witnessed marked Hobbes’s keen awareness of the perils of war

and political instability. In his Verse Life, he memorably recorded the atmosphere of

antebellum anxiety into which he was born: “For Fame had rumour’d, that a Fleet at Sea, /

Wou’d cause our Nations Catastrophe; / And hereupon it was my Mother Dear / Did bring

forth Twins at once, both Me, and Fear” (VL, lines 25-28). In keeping with a temperament he

so closely associated with fear, the young Hobbes was said to have “a contemplative

melancholyness” (AL 233). In 1629 he undertook his first major intellectual project: a full

translation of Thucydides’ History of the Peloponnesian War, published in 1629. Reading

Thucydides must have laid the theoretical groundwork for Hobbes’s later explorations about

the causes of, and remedies for, war and instability. In addition to the stern realism of

Thucydides’ portrayal of Greek politics, Hobbes learned from the ancient historian a lesson

that reverberates throughout his political writings: the Peloponnesian War and the demise

24
of Athens were ultimately brought about by “the weaknesses and eventual failure of the

Athenian democrats” (PL 246). Hobbes was never to be an enthusiast of democracy: quite

the contrary.

No single event in Hobbes’s lifetime is as salient for interpretive purposes as the

English Civil War. In 1640, as the war became all but inevitable, Hobbes left for Paris, where

he lived in exile until 1651. Not only on account of exile, but also because of the intense

criticism aimed at the political and religious doctrines of his 1651 Leviathan, Hobbes lived

through years of personal uncertainty and persecution. After the Restoration, critics pointed

out that his doctrine of political legitimacy was less than strictly royalist and that its tenets

could plausibly be read as a legitimation of Cromwell’s rule. “I appeare’d no less / Than a

Grand Enemy, so that I was for’t/ Banish’ed both the King’s Presence and his Court” (VL, lines

238-240)—banished, that is, by the same King (Charles II) for whom he had been a private

tutor during his exile in Paris. The 84-year-old Hobbes who penned the Verse Life was still

attempting to dispel any suspicion of past anti-royalism, holding no punches against

Cromwell’s revolutionary government: “King Charles at Paris who did then reside, / Had

right to England’s Scepter undeny’d. / A Rebel Rout the Kingdom kept in aw, / And rul’d the

Giddy Rabble without Law, / Who boldly Parliament themselves did call, / Though but a poor

handful of men in all” (VL, lines 215-222). And yet, oddly enough, Hobbes hinted at the

possibility that his critics’ pro-revolutionary interpretation of his views could in the last

analysis be recast as a defense of the principle of monarchy: “A Parliament so cal’d did

Govern here; / There was no Prelate then, nor Presbyter. / Nothing but Arms and Souldiers,

one alone / Design’d to Rule, and Cromwell was that one. / What Royalist can there, or Man

alive, / Blame my Defence o’th’ Kings Prerogative?” (VL, lines 255-260).

25
The debate over the consistency of Hobbes’s royalism continues to this day.1 Setting

aside the question of Hobbes’s intentions (and sincerity), it is puzzling that so many

sophisticated readers have continuously disagreed about the political lesson to be drawn

from one and the same text. Is Leviathan a sustained argument for royalism, or a defense of

the right to rule of whoever happens to be in power? This debate hints at an even more

fundamental question in Hobbes’s thought: what is the relation between naked power,

consent, and legitimacy? Untangling the relation between these concepts is the key to

understanding Hobbes’s peculiar theory of the right to rule, a theory that draws a very close

connection between might and right yet stops short of equating one with the other. As we

shall see, there is some truth on both sides of this debate. Hobbes did not set out to justify

the Protectorate, nor did he mean to undermine Charles’ legitimacy after the Restoration.

Hobbes’s theory of legitimacy was unique in the context of the English Civil War in that it

could serve both political purposes while remaining faithful to its fundamental theoretical

principles.

In considering this theoretical puzzle, it is important to bear in mind that Hobbes’s

personal experience and his life-long preoccupation with the evils of civil war and political

instability impressed a vivid sense of urgency upon his philosophical reflections. This

urgency has its clearest theoretical counterpart in Hobbes’s frightful depiction of human life

in the stateless condition of the “state of nature,” where life is “solitary, poor, nasty, brutish,

and short” (L XIII.9). The fundamental reason why legitimacy is so closely tied to a state’s

ability to effectively protect individuals through the monopoly of the use of force is precisely

1 For an excellent review of the different views taken by Hobbes’s contemporaries as well as modern
scholars on this question, see Hoekstra 2004, pp. 33-64.

26
that life without a state, “where there is no power able to over-awe” us all (L XIII.5), is a

condition to be avoided at all costs.

Chapter 1 lays out the social problem for which the state is, according to Hobbes, the

only possible solution. Life without of a state has three structural problems: (i) it is

hopelessly violent and insecure, (ii) there is no possible “moral” critique of violent and

antisocial behavior, and (iii) relations of justice backed by prudential rationality cannot arise

in the state of nature. In section 1.2, I explain why the state of nature is necessarily violent

by proposing a version of what Jean Hampton calls the “rational account” of conflict, as

opposed to the “passions” and “shortsightedness” accounts.2 Because the state of nature is

an exceedingly competitive environment with scarce resources, rational individuals

primarily concerned with their own security and self-defense have good reason to amass as

much power as possible. And because they cannot know for sure whether others are

disposed to behave aggressively or otherwise threaten their survival, they will have good

reason to resort to preemptive violence—and this for essentially defensive purposes.

Hobbes’s depiction of the state of nature as a “state of war” does not require him to paint an

implausibly pessimistic or perverse picture of human psychology; all the argument needs is

to attribute to individuals in the state of nature (i) fallible rational powers and (ii) the

common knowledge that they are all only fallibly rational. Though passions and

shortsightedness are standard ways in which breakdowns of rationality occur, it is the

common knowledge of the universal possibility of such breakdowns that triggers the logic of

conflict, not their actual occurrence (let alone statistical prevalence).

2 Hampton 1986, pp. 58-89. She favors the shortsightedness account.

27
Sections 1.3 and 1.4 explain why the violent behavior of individuals in the state of

nature is also normatively unimpeachable. Since for Hobbes there are no natural duties of

justice, the only possible sources of normative criticism of people’s behavior are their own

voluntary agreements, which alone can generate obligations of justice. However, valid

voluntary agreements are extremely rare in the state of nature. Their rarity springs from the

fact that their validly depends on occurrences of plainly irrational behavior coupled with the

strong assumption that reputational costs are very high in the state of nature. Because there

are no non-contractual moral obligations for Hobbes, justice can only become part of the

social fabric if individuals in the state of nature are somehow able to bring about the

background conditions which would make it rational for them to enter valid covenants of

mutual trust with one another. As we shall see in Chapter 2, that is exactly what the state

does—and what it alone is capable of doing.

1.2 The War of All Against All

Hobbes does not simply stipulate that life without a state is as terrifying as he says it

is. The structural characteristics of the state of nature—which Hobbes equates with a state

of war—are carefully derived from his views on human psychology in conjunction with the

facts of scarcity of natural resources and the approximate (factual) equality of human beings.

For starters, Hobbes adopts an egoistic version of the philosophical thesis that human

beings always act “under the guise of the good”: “whatsoever is voluntarily done, is done for

28
some good to him that wills it” (DCv II.8).3 Because Hobbes treats this as an axiom of

practical reason, it also serves as a regulative principle for attributions of action and

intention: “every man is presumed to do all things in order to his own benefit” (L XV.31). It

is also an axiom of practical rationality for Hobbes that “the greatest of goods for each is his

own preservation. For nature is so arranged that all desire good for themselves. Insofar as

it is within their capacities, it is necessary to desire life, health, and further, insofar as it can

be done, security for the future” (DH XI.6, emphasis added). The “necessity” at stake is one

of prudential rationality: every agent, insofar as he or she is rational, necessarily pursues the

end of self-preservation.4

Everyone is out to secure the means to their own self-preservation, and each knows

that every other person is doing the same. Because that requires the accumulation of

resources which are scarce as a matter of natural fact, and which everyone can be presumed

to want whatever else they happen to desire, competition amongst individuals in the state of

3 The locus classicus of the “guise of the good” thesis is Aristotle: “Every craft and every line of inquiry,
and likewise every action and decision, seems to seek some good,” that is, something that is “good” by the
agent’s own lights (1999 [340 BC], 1094a1-2). The same idea was later restated by Aquinas: “Finis autem, cum
rationem boni habeat, est objectum voluntatis” (Scriptum Super Sententiis I, D1, Q1, A1, Arg. 3; cf. also Summa
Theologica, Ia.IIae).
Bernard Gert is right to insist that Hobbes’s egoism (which he calls “tautological”) does not entail that
human beings only act on self-regarding desires or motives. It only means that “every man seeks what is good
to him,” but in a way that does not “impose any limits on the desires of men or on what they consider to be
good” (1991, p. 7; cf. also Gert 1996, pp. 167ff, and Hampton 1986, pp. 19-23). The axiom of the necessary end
of self-preservation is consistent with having and acting on other-regarding desires, a possibility Hobbes
openly discusses and commends in DH XII.8-12. The fact that I always act on what seems good to me does not
mean that all my actions are aimed at what is good for me: “Hobbes does not say… that people are psychological
egoists, or that they pursue or care only about their own good” (Rawls 2007 [1983], pp. 45-46).
4 A caveat is in order. To be sure, Hobbes has good reason to attribute a unique status to survival as the
“necessary condition for continuing to realize all other values” (Abizadeh 2011, p. 311), but this does not mean
that being alive is a sufficient condition to be able to realize any other value. It is possible to make room for
cases where the loss of a good other than one’s own life is regarded as worse than death itself (e.g., a parent
considering the prospects of the death of a child) by allowing the interest in self-preservation to encompass
whatever one deems truly essential for life to be worth living.

29
nature is inevitable.5 Crucially, the inevitability of competition is not premised on

pessimistic assumptions about people’s motivations. If people in the state of nature are

rational, and thus act consistently with their self-preservation, they can be benevolent and

compassionate, but will nevertheless find themselves in conflict with others simply because

the natural means to their self-preservation are scarce. More importantly, even good-nature

individuals cannot reasonably expect others to act on other-regarding motives. Staking one’s

survival on the hope that others will treat one kindly is a course of action that cannot

withstand rational scrutiny in the state of nature, not even for a benevolent person.

Even though Hobbes allows for other-regarding motives, he seems to think that most

people in fact behave like “predominant egoists” most of the time.6 This is a plausible

observation about standard human behavior, but I think Hobbes has a powerful

philosophical reason other than empirical plausibility to set altruistic behavior aside in his

description of the state of nature. Like Machiavelli and Bacon, Hobbes believes that the

science of politics can only develop a blueprint for perpetual peace and security if it takes as

its point of departure “the lowest common denominator of human motivation”; only then

could the proposed solution be expected “to stand firm anywhere and everywhere.”7 The

foundations of political society cannot depend on people’s contingent, and relatively rare,

benevolent desires. Rather, civil society must be shown to be possible on the most minimal

psychological assumptions, those that are least likely to facilitate the spontaneous

5 All I assume is that there are some scarce goods that virtually everyone needs in order to remain alive
whatever else they happen to desire (water, food, shelter, and the like). Unless one is ready to deny that there
are such universal, biologically determined desires, it follows that there will in fact be competition in the state
of nature (Gauthier 1969, pp. 11-18, pace Abizadeh 2011, p. 301).
6 Kavka 1986, pp. 64-69.
7 Berns 1987 [1963], p. 413. On Hobbes’s agreement with Bacon’s and Machiavelli’s break with a
tradition that “based… political doctrines on considerations of man’s highest aspirations,” see p. 396.

30
emergence of social cooperation. As Rawls puts it, “Hobbes’s largely self-centered, or self-

focused, account of human nature serves, in effect, as an emphasis for the purposes of a

political conception.”8 Hobbes’s tendency to talk about individuals in the state of nature as

if they were completely unconcerned with the good of others is not an entailment from his

psychological egoism but a deliberate argumentative strategy. The science of politics must

demonstrate the possibility of peace and cooperation without assuming strong natural

inclinations towards it. If instituting civil society is proven to be the rational course of action

for the strictly self-interested individual, then a fortiori it will be all the more rational for

those who act on other-regarding motives and desires.9

There is an additional and very important reason why competition is an enduring,

structural feature of the state of nature for Hobbes. All human beings are (assumed to be)

predominantly concerned with their self-preservation, and there are natural resources

which they all tend to require for their long-term survival. But nobody can reasonably expect

to be able to hold everyone else at bay while in possession of those universally prized

resources. Nobody is individually strong or powerful enough to be in a position to hope,

rationally, to enjoy long-term possession of anything into the indefinite future, for human

beings are approximately equal in strength and ability. There may always be a stronger

person lurking around with a desire, just like mine, to possess what I currently hold. Because

we are all “so equal in the faculties of body and mind” (L XIII.1), I cannot reasonably expect

8 Rawls 2007 [1983], p. 46.

9 This is not to be confused with the “knave’s principle,” according to which “in contriving any system of
government, and fixing the several checks and controuls of the constitution, every man ought to be supposed a
knave, and to have no other end, in all his actions, but private interest” (Hume 1994 [1741], p. 24). I am not
attributing to Hobbes a view about the right way to design political institutions, but a methodological principle
for the justification of political authority in general.

31
to systematically subdue everyone else and thus ensure that nobody will interfere with the

pursuit of my projects. Our condition of (factual) equality is such that nobody can ever

(rationally) think him or herself safe from sudden and violent death at the hands of another.

What is worse, I should not only fear those who are stronger than me; in fact, everyone poses

an equally serious threat, given “with how great a facility he that is the weaker in strength or

in wit, or in both, may utterly destroy the power of the stronger, since there needeth but little

force to the taking away of a man’s life” (EL 14.2; cf. DCv I.3). Even the strongest person’s

ability to subdue others by physical force is a hopelessly weak foundation on which to

ground expectations for the future and pursue long-term plans.10

The natural equality of human beings in a context of inevitable competition explains

the second structural feature of the state of nature: mutual mistrust. “From this equality of

ability ariseth equality of hope in the attaining of our ends” (L XIII.3)—which makes human

beings unwilling to give in to others. Moreover, this unwillingness to give in to other people’s

wishes is a matter of common knowledge. I am unwilling to give in to my neighbor, my

neighbor knows this, and I know that she knows that to be the case. As a result, nobody in

the state of nature can rationally trust anyone else. I cannot trust my neighbor not to

interfere with me, nor can she trust me not to interfere with her, because we both know that

either one of us could succeed in the event of a confrontation; hence, both of us can hope to

succeed in going after the same goods for which we compete. This problem of structural

10 The approximate equality of human beings in Hobbes’s picture is factual, not normative. However,
there is one sense in which Hobbes would agree with Locke’s normative “natural equality,” namely, in that
nobody has natural authority or dominion over anyone else in the state of nature. This absence of “natural”
relations of authority signals Hobbes’s radical conventionalism, by contrast with the Aristotelian doctrine of
natural slavery (Politics 1254a-b) or Sir Robert Filmer’s patriarchalism. For Hobbes, all forms of political
authority are human artifacts.

32
mistrust—the known willingness to resist one another’s’ encroachments upon our pursuits

and to interfere with theirs if necessary—is what Hobbes calls “diffidence” (L XIII.3-4, DCv

Preface §3; cf. DH XIII.5).

In the face of universal diffidence, the rational interest in one’s self-preservation

justifies two courses of action. First, one must amass as much power as possible to keep

others at bay as reliably as one can. If power is to serve as a deterrent against potential

attackers, it should be publicly displayed and it must (be seen to) exceed the power others

have in turn: “Power, if it be extraordinary, is good, because it is useful for protection; and

protection provides security. If it be not extraordinary, it is useless; for what all have equally

is nothing” (DH XI.6). An arms race of sorts is nothing short of a rational imperative in the

state of nature. Notice that, once again, there is no need to assume that people are actively

malevolent or aggressive for the purely defensive logic of self-preservation to entail the

active pursuit not of power as such, but of greater power than others (are thought to) have.

The rationality of the desire for eminence is simple enough: I can only expect to be able to

defend myself if my power is greater than that of the aggressor, hence power differentials,

not quanta, become objects of rational desire. There is every reason why “man [in the state

of nature] scarce esteems anything good, which hath not somewhat of eminence in the

enjoyment, more than that which others do possess” (DCv V.5).11 Now of course it would be

best if my power were great enough to dissuade a would-be attacker; that way, I would never

actually have to defend myself. I therefore seek not only to have more power than others,

11 Sandra Field claims that in Hobbes’s early texts the concept of power is not essentially positional
(2014, pp. 61n3, 65), contrary to what this passage clearly indicates. Field does not discuss this or any other
passage from De Cive, where it seems to me that Hobbes is already working with the same socialized, positional
notion of power (or of the power that matters, at any rate) that she correctly identifies in Leviathan.

33
but to be seen as being more powerful than them. And obviously the more power I visibly

have, the more likely this reputation for power will take hold. Reputation of powers is a true

self-fulfilling prophecy—in Hobbes’s words, “Reputation of power is power” (L X.5).12

The second implication of the common knowledge of diffidence is that the preemptive

use of force against others is fully rationally justified: “As from this diffidence of one another,

there is no way for any man to secure himself so reasonable as anticipation” (L XIII.4).

Suppose my neighbor is a very nice person or, better, that he is rational enough to know that

he is better off not provoking others through aggressive behavior that might lead them to

attack him in turn. If my neighbor is indeed like that, I face no serious risk in deciding not to

attack him. But the truth is that I have no good reason to believe that he is such a nice guy

(he might be faking it, so as to catch me off-guard in the future). And even if he is a kind,

considerate person, I have no good reason to expect that he will reliably behave accordingly

in his future dealings with me (unless I am guilty of the fundamental attribution bias, that

is). Because I cannot be certain of any of these things, refraining from attacking him today

might in fact cost me my life tomorrow. So I am better off attacking him first. And if by

12 For an excellent analysis of how the reputation of power can create rather than reflect someone’s
actual power, see Field 2014, pp. 73-74. I have only one reservation about Field’s analysis of “socially
constituted” power (p. 70). It is one thing to argue that reputational power can arise quite independently of
the physical power that is believed to underwrite it; it is altogether different to say that reputational power “is
not dependent on any connection” to physical power (p. 71, emphasis added). The latter view—Field’s—goes
too far and seems incorrect. In the last analysis, “social and political powers” are genuine powers, i.e., effective
means to get what one wants, because they are believed to be proxies for a person’s ability to summon a certain
quantum of physical power in the physical world. (E.g.: having many friends makes me powerful only because
people assume that I can call upon my friends to do certain things—which in turns presupposes that my friends
have the requisite natural capacities to do what I ask them to do.) Of course, we may (and often do) exaggerate
the extent to which reputation translates into concrete causal efficacy. If we discovered that there is a
significant gap between someone’s reputation for power and the actual power that this person is capable of
summoning, then we would have called his bluff. This suggests that instances of inflated and unfounded
reputation for power are parasitic on the normal cases in which the belief that someone is powerful does to
some extent reflect that person’s actual power in the world. Field cannot be right to argue that in most cases
most of the time “reputation is only a tenuous sign of the presence” of background natural power (p. 72).

34
chance he is indeed a rather peaceful fellow, but his reasoning about me is the same as mine

about him, then I should expect that he will decide to fact attack me first, despite not being

naturally disposed to do so—which is all the more reason for me to strike as soon as possible!

Whatever my neighbor’s intentions or dispositions, I am better off resorting to preemptive

violence. This is the rational thing for me to do given my awareness that humans being can

lie and, more important, that even when they are sincerely virtuous or rational, they are not

(nor can be known to be) reliably so. In other words, humans are fallibly rational and

virtuous at best, always liable to motivational shifts that could prompt any one person to

attack another without apparent provocation, and justifiably apprehensive about what other

people may do to them in the future.13

Given the common knowledge of human fallibility (and hence of the unpredictability

of our behavior), if people in the state of nature are rational, we should expect violence to be

pervasive. Indeed, the natural equality of human beings extends to their equal and well-

known “will of hurting” others (CV I.3) because the line of reasoning that leads me to adopt

the first-strike policy of self-defense is itself a piece of common knowledge in the Hobbesian

state of nature. As with competition and diffidence, this common knowledge of the readiness

to resort to violence does not depend on particularly pessimistic motivational assumptions

about human beings in the state of nature. Hobbes’s argument works without invoking

anything like a universal animus dominandi. As Alan Ryan has correctly pointed out, the

rationality of preemptive attacks does not amount to saying that “men have any intrinsic lust

13 In game-theoretical terms, striking first is a dominant strategy. This is the line of reasoning that lends
support to the view that conflict in the Hobbesian state of nature is grounded in rationality plus the common
knowledge that people can be unpredictably aggressive. For a similarly “rational” account of conflict, see Kavka
1986.

35
for conquest, desire to dominate their fellows, or the like. That men seek restlessly for power

after power throughout their lives is a result of their insecurity.”14 In Hobbes’s own words:

“though the wicked were fewer than the righteous, yet because we cannot distinguish them,

there is a necessity of suspecting, heeding, anticipating, subjugating, self-defending, ever

incident to the most honest and fairest conditioned” (DCv Preface §3). The readiness to use

force, like the rational desire for eminence, is sufficiently explained by purely defensive

motives. To assume malice or ill will towards others would only over-determine this

structural feature of the state of nature, adding nothing of import to Hobbes’s argument.15

The account of competition and diffidence does not require postulating a desire for

domination for its own sake, yet Hobbes is aware that people are conspicuously attached to

positional goods that reflect their often inflated sense of their own value and importance.

Goods like reputation and glory, which depend on other people’s assessment of one’s relative

standing, are desired both for their own sakes and because they contribute to one’s

(perceived) power, as we saw in connection with the desire for eminence and the value of a

reputation of power. “To be praised, loved, and magnified is pulchrum; for they are

testimonies to virtue and power” (DH XI.13). The instrumental desire for positional goods

(for power differentials) turns interpersonal competition into a zero-sum game. When the

desire for positional goods becomes intrinsic rather than merely instrumental, this only

exacerbates the proneness to violence. More specifically, a pathological attachment to

14 Ryan 2012 [1973], p. 225. The logic of competition makes power an all-purpose good (Field 2012, p.
74); it is the primary social good par excellence in the state of nature, i.e., something everyone ought to want
insofar as they are rational and regardless of whatever else they desire (cf. Rawls 1999 [1971]).
15 Hobbes’s instrumental desire for power contrasts with Machiavelli’s attribution of a desire to
dominate for domination’s sake to the “nobles”: “if one considers the end of the nobles and of the ignobles, one
will see great desire to dominate in the former, and in the latter only desire not to be dominated” (Machiavelli
1996 [c. 1517], I.5, §2).

36
positional goods—what Hobbes calls “vainglory”—tends to increase the occasions for

conflict, as those afflicted by it are inclined to resort to force for the merest trifle and the

pettiest insult.16 In this way, the pathology of vainglory only increases the opportunities to

ignite the cycle of violence that entraps even the most rational, non-malicious individuals in

the state of nature. “This man’s will to hurt ariseth from vain glory, and the false esteem he

hath of his own strength; the other’s from the necessity of defending himself, his liberty, and

his goods, against this man’s violence” (DCv I.4).

Pathological desires for positional goods are important because Hobbes seems to

think that most unprovoked aggressive behavior will be due to the sort of hypersensitivity

typical of the vainglorious. But this is not the only reason why people might behave

aggressively and thereby disrupt the fragile live-and-let-live equilibrium that could perhaps

arise among self-interested individuals in the state of nature. The logic of preemptive

violence does not depend on a specific account of why another person may want to attack

me for no apparent reason. Provided I know that it is possible for another to attack me

unprovoked, the putative attacker’s reasons are immaterial to my strategic decision to strike

the first blow. Hobbes does not need to make the theme of glory “the organizing cause of

war,” as if the only suitable explanation of conflict was the “reactive disposition triggered by

perceived insults in social interactions.”17 Hobbes does not say, nor does he need to say, that

16 For an interpretation of the linguistic sources of the human interest in positional goods, and their
tendency to become pathological, see Pettit 2008a, Chapter 6. See also Abizadeh 2011 (pp. 300, 310-311) for
an interesting discussion of how the content of the desire for glory depends on the “ideological” background of
an individual’s socialization. Abizadeh’s argument applies to the Hobbesian state of nature only on the
contentious assumption that it can be very socially complex without also being political. I doubt Hobbes would
agree that a particular cultural conception of glory can be sustained and inculcated in a social world that did
not already have some form of public authority.
17 Abizadeh 2011, pp. 299-300. Abizadeh’s “psycho-ideological” interpretation of Hobbes’s account of
war also exaggerates the role of disagreement, which he treats as the normal “catalyst for war” when coupled
with the desire for glory. Abizadeh’s view is essentially this: even non-vainglorious people concerned with

37
people in the state of nature are pathologically proud and prickly; all that is needed to make

the problem of violence endemic is the common knowledge that other people can be

unpredictably aggressive for all sorts of reasons.

Because the common knowledge of the possibility of unprovoked aggression suffices

to justify the logic of preemptive violence as an optimal defense strategy, I disagree with

Kavka’s claim that the state of nature will only induce violent behavior by non-aggressive

individuals if there actually are enough malicious or vainglorious people around to make

everyone weary of becoming a target of their unprovoked attacks.18 Why must there be

actual “dominators,” as Kavka calls them? All I need to know about you in order to justify my

first-strike policy is that I do not know, and have no way of knowing with certainty, whether

you are a dominator or not. Uncertainty about other people’s dispositions is inescapable

because no amount of prior experience gives conclusive reason to infer that a person is not

faking amicable or peaceful behavior or that his or her behavioral patterns will not change

their self-esteem will worry about what others think of them; they will thus be disposed to behave violently
out of sheer defensiveness whenever they feel offended—and nothing is more offensive than moral
disagreement (pp. 306, 308-309). In addition to being rather implausible (is mere disagreement really such an
insulting provocation?), this argument seems hardly necessary to explain the causes of violent conflict in the
state of nature. The competition for scarce goods among rational individuals who cannot know whether others
constitute threats to their individual survival or not is sufficient to account for the Hobbesian equation of the
state of nature with a state of war. Normative disagreement is certainly an obstacle to potential antidotes or
solutions to war, as we shall see in section 1.3, but it is not the central cause of war (op. cit., pp. 301, 302n11).
Abizadeh’s is keen on insisting that people are in fact “fragile, fearful, impressionable, and psychologically
prickly” (op. cit., p. 298), but perhaps this is more of a consequence than the cause of a culture in which conflict
arises from the smallest perceived insult. One can imagine a society in which people come to believe that
“prickly and defensive” behavior (p. 306) is a sign of power, maybe on the assumption that only a truly powerful
person can afford to pick a fight for the pettiest perceived insult. Because individuals in such a society desire
power and know that a reputation of power is self-validating, they will have every reason to adopt prickly
behavior without actually having (or wanting to have) the underlying vainglorious disposition. Vainglorious
defensiveness, which so easily becomes aggression, could well be a value-mistaken norm (Pettit 2008b, p. 143).
Not even in that case, then, would we have to conclude that people are in fact as “psychologically prickly” as
Abizadeh believes they are.
18 Kavka 1986, pp. 96-100.

38
unexpectedly in the future. Again, the common knowledge of human fallibility and

unpredictability is enough for Hobbes’s purposes.

Once the implications of competition, diffidence, and the thirst for glory or eminence

are understood, it becomes obvious why “the natural state of men, before they entered into

society, was a mere war, and that no simply, but a war of all men against all men” (DCv I.12).19

In fact, the state of nature would be a condition of war even if no actual violence took place,

as the common knowledge of everyone’s willingness to contest by force (and undertake

preemptive attacks) is sufficient to constitute a state of war (EL XIV.11, DCv I.12, L XIII.8). 20

Though of course conflict may arise from, or be aggravated by, numerous other factors, the

important point for Hobbes is that the rational behavior of self-interested individuals who

must compete with other people, and who know that everyone is a potential threat and a

potentially unprovoked aggressor, is sufficient the generate a vicious cycle of violence.

19 Hobbes’s statement is a bit stronger than it needs to be. Not every person has to be at war with every
other. It suffices that there be “enough actual conflict, or well-founded fear of conflict, that no one, no matter
how well-endowed with intelligence or physical strength, will have enough security in the possession of any
good to make life tolerable” (Curley 1990, pp. 175-176).
This common-sense rendering of Hobbes’s hyperbolic description helps respond to Abizadeh’s main objection
to the rational account of preemptive violence—namely, that it does not work once we take notice of that fact
that other people may be necessary to one’s survival (2011, pp. 303-304). Abizadeh’s observation can at best
explain why specific encounters do not turn into violent outbursts—namely, because under the circumstances,
the parties have reason to believe that their individual survival depends on a temporary truce and maybe even
short-term cooperation. But that cannot possibly be a generalized, let alone stable, situation in the state of
nature. So perhaps the war will not always be of all against all, but the state of nature will be a generalized
condition of war all the same.
20 The equation of the state of nature with a state of war does not depend on Hobbes’s minimal definition
of the latter. Whenever people encounter one another in the state of nature the “will and intention of
contending by force” is not just “sufficiently declared” (or rather, assumed by each party with respect to the
other); it will in fact be materialized if at least one party is rational enough to strike the first blow. The only
scenario in which we would have a non-violent state of war is the case of a state of nature with such minimal
population density that there would be virtually no physical encounters among individuals at all.

39
1.3 The Irrationality of Justice

Hobbes clearly thinks that the war of all against all is a factually accurate depiction of

how rational human beings would behave in a state of nature where they are forced to

compete with other agents whose intentions and dispositions they cannot reasonably rely

upon or predict. More importantly, he believes that this inclination towards violence is

normatively justified. We have seen how this is so from the point of view of prudential

rationality and the natural (“necessary”) end of self-preservation—and for Hobbes this

prudential analysis exhausts the normative landscape in the state of nature. There simply is

no further question to be asked as to the moral justifiability of prudentially rational action.

Hobbes flatly rejects the idea of moral realism. Absent conventional rules to fix the

meaning of evaluative moral terms—“good,” “bad,” “right,” “wrong,” and so on—there is no

standard of judgment other than one’s individual sensibility, which is in turn a function of

one’s contingently given desires. “For these words of good, evil, and contemptible are ever

used with relation to the person that uses 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)” (L VI.7).

The problem of “evaluative indexicality,” as Philip Pettit calls it, entails that “there is no

inconsistency between my saying something is good and your saying it is bad… Thus, if you

respond [to my saying that the plan is good] by saying that the plan or proposal is bad, then

you register a practical clash.”21 Hobbes’s anti-realism commits him to the view that

21 Pettit 2008a, p. 52. I agree with Pettit’s suggestion that the clash at stake is merely practical. Because
there is no convention-independent fact of the matter as to what is “good” and “bad,” our moral disagreement
is not cognitive: there is nothing for either one of us to be right or wrong about in putting forth our inconsistent
evaluations. In other words, our contradictory evaluations simply express divergent desires as opposed to

40
evaluative disagreement in the state of nature is intractable in the absence of a convention

that can affix shared semantic content to our moral discourse.

There are, therefore, no (shared) moral norms on which people can act in the state of

nature. Their sole guide is their own private judgement of good and bad, which depends on

what they (contingently) find pleasing or displeasing. “Right” and “wrong” are, in that

context, a function of what each individual judges to be conducive or detrimental to their

own self-preservation. As a result, the normative landscape of the state of nature is

structured around each person’s “right of nature,” or “the liberty each man hath to use his

own power, as he will himself, for the preservation of his own nature, that is to say, of his

own life, and consequently of doing anything which, in his own judgment and reason, he shall

conceive to be the aptest means thereunto” (L XIV.14; cf. EL XIV.6, DCv I.7). In the Hobbesian

state of nature, omnes iudices in suis causis sunt.

The individual’s natural right of self-preservation, unlike artificial or conventional

rights, entails no correlative duties on anyone else, as no one is obligated to act in accordance

with another person’s private judgment on any matter whatsoever. Consequently, everyone

in the state of nature is permitted to impose their will upon everyone else and nobody can

be said to be wronged by another person’s interferences. There can be no wrong or injustice

in the state of nature. This dire normative characterization of the state of nature, coupled

with the factual equality that makes it into a state of war, clears the way for Hobbes to outline

a convincing path to statehood because it is so evidently rational for everyone to want to

inconsistent cognitions, there being no truth-makers for evaluative terms at all. This is yet another reason to
doubt the plausibility of Abizadeh’s “psycho-ideological” theory of war in the state of nature (2011), which
assumes that a normative disagreement with no cognitive substance whatsoever is somehow egregiously
offensive (see p. 37n17).

41
overcome this condition of universal war lacking even in the most basic common moral

understanding.

Prudential rationality itself grounds a series of conditional requirements that

delineate the path to peace. These requirements are Hobbes’s laws of nature, all of which

are “theorems” (L XV.41) of practical reason. The laws of nature are all conditional on their

injunctions being consistent with the “right of nature,” or the imperative of self-

preservation.22 The first law simply reflects the obvious fact that peace is preferable to the

state of nature: “every man ought to endeavour peace, as far as he has hope of obtaining it” (L

XIV.4). The second law is more revealing, as it outlines how peace can be secured: “that a

man be willing, when others are so too, as far-forth as for peace and defence of himself he shall

think it necessary, to lay down his right to all things, and be contented with so much liberty

against other men, as he would allow other men against himself” (L XIV.5). These two laws

jointly entail that I must be willing to restrict my right of nature if and only if others are

willing to do the same. Absent such declaration of other people’s intent—and assurance that

they will behave accordingly—, the second law of nature commands me to do nothing at all.

All I need to do is form the second-order intention to be willing to “lay down my right” if and

when others do so as well. “The force therefore of the law of nature is not in foro externo, till

there be security for men to obey it; but is always in foro interno” absent the requisite

assurance (EL XVII.10; DCv III.27, L XV.36-37).

22 The Hobbesian laws of nature are strict logical derivations from the necessary end of self-preservation.
They are thus derived from reason or “enlightened self-interest,” not from the passions, as Berns mistakenly
contends (1987 [1963], p. 397).

42
The third law of nature—“that men perform their covenants made”—is also critical to

Hobbes’s system, “For where no covenant hath preceded, there hath no right been

transferred, and every man has right to everything; and consequently, no action can be

unjust” (L XV.2; cf. EL XVI.2, DCv III.3). If obligations of justice arise out of voluntary

agreements, and people in the state of nature are perfectly capable of making agreements

with others, why are there no norms of justice amongst them?

The fact that the third law of nature is not formulated in explicitly conditional terms

does not mean that there are no conditions for it to bind in foro externo. In fact, those

conditions follow straightforwardly from Hobbes’s theory of the validity of covenants. There

are, for Hobbes, three kinds of contracts, all of which are distinguished from gifts by their

reciprocal character: “[1] either both parties presently perform, and put each other into a

certainty and assurance of enjoying what they contract for: as when men buy or sell, or

barter; [2] or one party performeth presently, and the other promiseth, as when one selleth

upon trust; [3] or else neither party performeth presently, but trust one another” (EL XV.8).

Type-1 contracts can only occur with actual objects that can be physically and immediately

exchanged; in that case, “the thing may be delivered together with the translation of the

right” to the thing (L XIV.10). Type-2 and type-3 contracts, by contrast, involve trust. It is to

these alone that Hobbes refers by the term “covenant” (L XIV.11, EL XIV.9). In the case of

type-1 contracts, since the exchange is immediate, the third law of nature does not even kick

in, so to speak. There is no obligation imposed upon anyone, and so no resulting relations of

justice, once the exchange has been concluded, as there is no temporal gap between one

party’s performance and the other’s. Such exchanges leave no normative residue, no abiding

43
relation to the other party. Hobbes is thus consistent in formulating the third law of nature

in terms of “covenants,” signaling that it has no relevance to type-1 contracts.

Relations of justice in the state of nature can only arise out of covenants. The problem,

however, is that in the state of nature it is always irrational to perform on the obligations

that supposedly arise out type-3 contracts, or “covenants of mutual trust,” and type-2

contracts. Since prudential rationality is the only form of normativity that there is for

Hobbes, it follows that both types of contracts are invalid in the state of nature. In the case

of covenants of mutual trust, “in the condition of mere nature (which is a condition of war of

every man against every man) upon any reasonable suspicion it is void” (L XIV.18). The

invalidity of covenants of mutual trust is actually overdetermined. On the one hand, the

evidentiary standard for “reasonable suspicion” is irreducibly subjective, in keeping with

every person’s prerogative to act solely on his or her private judgment while in the state of

nature. Anyone can claim virtually any reason as evidence of “reasonable suspicion” of the

other party’s unwillingness to deliver on its promise. In fact, as a function of structural

diffidence, every rational agent in the state of nature has a perfectly sound reason to be

“reasonably suspicious” of everyone else. After all, that is precisely what follows from the

common knowledge of “the will to contend by battle”: I know that you are willing to fight me

in carrying out your projects; you know that I am willing to fight you, too; and we both know

that the other knows this to be the case. Trust is impossible under such circumstances. As a

result, anyone can unilaterally release him or herself from the “obligations” incurred through

a type-3 contract, which is just to say that a covenant of mutual trust in the state of nature is

invalid and results in no obligations at all for either party. Covenants of mutual trust cannot

give rise to relations of justice in the state of nature.

44
The reason why covenants of mutual trust are invalid equally explains why there

would be (virtually) no type-2 contracts in the state of nature. For “when the contract is

between such as are not compellable, he that performeth first, considering the disposition of

men to take advantage of every thing for their benefit, doth but betray himself thereby to the

covetousness, or other passion of him with whom he contracteth” (EL XIV.10). A type-2

contract in the state of nature consists in renouncing whatever one gives away to the other

party without having reason to expect anything in return. So the first performer in a type-2

contrast is willingly surrendering something of value to another person without a well-

founded expectation of reciprocation, and this is contrary the rational interest in having

superior power for the sake of self-preservation (as discussed in section 1.2). Any type-2

contract is inconsistent with the first performer’s “right of nature”: it is therefore absolutely

irrational. In a sense, the invalidity of covenants of mutual trust disposes of type-2 contracts,

for the latter must have originated as versions of the former. A type-2 contract is simply a

case in which at least one party to an invalid covenant of mutual trust has already performed

his or her “obligation.” In other words, a type-2 contract is what you get when someone has

been foolish enough (in the state of nature) to be the first performer of a type-3 contract.23

The remaining sixteen laws of nature that Hobbes spells out in Leviathan (XV.16-33)

are essentially elaborations of the first three. But the first three theorems of prudential

23 Contrary to my reading, Curley seems to think that in the state of nature there may be some valid
covenants of mutual trust, that is, some type-3 contracts such that it would be rational to be the first performer.
This is suggested by the case of people who enter a type-3 contract with others for whom they “have feelings
of natural affection” (1990, p. 181). It is unclear, however, how such feelings would make performance rational
(and hence the covenant valid), since affection does not constitute evidence that the other party can be trusted
to perform his or her end of the bargain. One can imagine Hobbes saying that “feelings of natural affection” in
the state of nature may be no more than entrenched dispositions to adopt beliefs about other people’s character
and future behavior without sufficient rational evidence. Curley’s proposal can be turned on its head: the
invalidity of covenants of mutual trust in the state of nature is confirmed by the fact that they would only work
among people who tend to have irrational beliefs about their contractual counterparts.

45
rationality suffice to show how the laws of nature hold the key to a radical transformation of

human life in the state of nature. Indeed, the essential question for Hobbes is how to satisfy

the antecedent conditions that make these rational requirements binding in foro externo. If

things were such that covenants of mutual trust could be valid, then there would be

normative constraints of justice and people could trust each other’s willingness to “lay down”

the right to all things for the sake of common peace and cooperation. It is no exaggeration to

say that the fundamental problem of politics for Hobbes is securing the conditions of

possibility of (rational and therefore valid) covenants of mutual trust.

1.4 Two Puzzles About Obligation

Before turning to Hobbes’s proposal for how to make valid covenants of mutual trust

possible, let me pause to consider two important interpretive issues that arise in connection

with the Hobbesian account of normativity in the state of nature.

The first problem is an apparent inconsistency in Hobbes’s account of the

impossibility of valid covenants in the state of nature. The puzzling passage comes from

Leviathan:

Covenants entered into by fear, in the condition of mere nature, are obligatory.
For example, [Example A] if I covenant to pay a ransom, or service, for my life, to an
enemy, I am bound by it. For it is a contract wherein one receiveth the benefit of life;
the other is to receive money, or service, for it; and consequently, where no other law
(as in the condition of mere nature) forbiddeth the performance, the covenant is valid.
Therefore prisoners of war, if trusted with the payment of their ransom, are obliged
to pay it; and [Example B] if a weaker prince makes a disadvantageous peace with a
stronger, for fear, he is bound to keep it, unless (as hath been said before) there
ariseth some new and just cause for fear, to renew the war. And [Example C] even in
commonwealths, if I be forced to redeem myself from a thief by promising him money,
I am bound to pay it, till the civil law discharge me. For whatsoever I may lawfully do

46
without obligation, the same I may lawfully covenant to do through fear; and what I
lawfully covenant, I cannot lawfully break. (L XIV.27)

In this complex passage, Hobbes draws on three examples to make the point that fear

does not vitiate the validity of contracts.24 Indeed, the only feature that examples A through

C have in common is that in each case someone has covenanted out of fear. Example C is

unproblematic because covenants are always valid and binding in a commonwealth. If the

case sounds outrageous it is only because Hobbes is keen on pressing the point that fear in

itself does not invalidate a voluntary agreement; only a civil law specifying additional validity

conditions could make fear a nullifying circumstance (hence Hobbes’s caveat: “till the civil

law discharge me”).25

Example B is a bit trickier. Because princes are in a state of nature in relation to one

another, their covenants are valid only if there is no “just cause for fear” arising after the

making of promises—where the standard of what counts as such a cause is irreducibly

subjective. Since each prince is only bound to follow his own private judgment as to what

constitutes “just cause for fear,” the bond of this covenant is very weak at best. The contract

will be valid—that is, it will ground obligations of justice—only for as long as performance

is consistent with each party’s rational prudence. And as it turns out, it is rational for the two

princes to keep the peace they have agreed upon. Let us go through the reasoning of each of

the two parties to this imagined truce. Assume the two princes are still amid intense

24 I return to the relation between fear, voluntariness, and the validity of contracts in Chapter 2.3.
25 Curley argues that “Hobbes is not really that rigorous” on the issue of promises extorted by fear
because he allows that they are not binding “where either the promise or the performance is forbidden by the
civil law” (1990, p. 222n58). On the contrary, I find Hobbes to be very rigorous on this point. Fear per se never
vitiates a voluntary agreement because I may agree to a contract out of fear consistently with that contract
being voluntary and in my rational self-interest. Only the civil law can make “extortion by fear” (or duress) into
a vitiating condition independently of the rationality of the agreement itself.

47
hostilities. Clearly, it is rational for both to prefer a truce, albeit for different reasons. The

weak prince knows that he will be defeated if the conflict persists, and that defeat will be

followed by dethronement (the political equivalent of violent death); clearly a

“disadvantageous peace” is preferable to that. For the strong prince, victory in war is certain

but costly, and letting the weaker prince rule over a tightly controlled tributary state poses

no real threat for the future. The strong prince is therefore also better off with peace, as the

cost of tolerating a weaker and subdued prince may well be lower than the cost of continued

hostilities. In other words, both princes have reason to hammer out a type-3 contract or

covenant of mutual trust. Moreover, it is rational for the strong prince to implement a

unilateral cease-fire because the cost is minimal (in terms of the tactical advantage it creates

for the weak prince) while it may signal the intention of a stable peace to the other party

(and the strong prince knows that the weak prince wants peace and would be motivated by

self-interest and fear not to jeopardize a stable peace for the sake of short-term, non-decisive

tactical advantage). Right after the strong prince’s unilateral cease-fire, we will have a type-

2 contract to which the weaker princes is obligated because it is unquestionably rational to

contribute to a lasting peace, however disadvantageous to him.

But had we not said that covenants of mutual trust were impossible in the state of

nature and that type-2 contracts would only occur through rare breaches of rationality? Is

not Hobbes here allowing that there can be obligations of justice in the state of nature even

without a civil state? Not really, as it seems to me. While there will be valid obligations of

justice resulting from the “disadvantageous peace” of which Hobbes speaks in L XIV.27, the

case at hand violates one of the fundamental premises of the interpersonal (as opposed to

international) state of nature, to wit, the premise of (factual) equality. The rationality of the

48
covenant of mutual trust between Hobbes’s princes, and of the first performer’s unilateral

cease-fire, depends entirely on the disparity between the two princes’ power. The

“disadvantageous peace” is only binding because the strong prince is so much stronger than

the weak prince that the only alternative scenario for the latter is certain defeat. There is no

“equality of hope in the attaining of [their] ends” (L XIII.3) among our two princes, as there

is among any two individuals in the state of nature. Hence, though formally a contract, this

peace is more accurately described as a unilateral concession or gift of the strong prince

which the weak one has no reason to disrupt or reject. Hence Hobbes’s apt qualification that

the terms of the peace are binding upon the weak prince “unless… there ariseth some new

and just cause for fear”—that is, unless the weak prince has good reason to suspect that the

strong prince intends to resume hostilities, in which case the former is well advised to reap

whatever tactical benefits can be gained from firing the first shot. Because resuming

hostilities amounts to near certain defeat for the weak prince, such a move would require

very good reasons indeed—which is why the “disadvantageous peace” may turn out be quite

stable after all.

If we modify Example B to refer to the case of princes with roughly equal power, the

situation changes entirely. While it would of course be preferable for two princes of equal

power to coexist peacefully rather than contend by force and face the possibility of (political)

death, it would not for that reason be rational for them to agree to a covenant of mutual trust,

much less for either one to be the first performer through a unilateral cease-fire. When

princes are properly modeled after individuals in the state of nature—i.e., when they are

assumed to have roughly equal power—, covenants of mutual trust are impossible among

them as well. Hobbes is thus consistent in allowing the validity of the weak princes’

49
obligations per Example B while rejecting the possibility of binding covenants of mutual trust

among individuals in the state of nature. The point of Example B is not to call into question

the conclusion we reached in section 1.3, but rather to highlight the point also made through

Example C, namely, that obligations of justice can arise out of voluntary agreements

motivated by fear.26

Let us now consider Example A, yet another case of type-2 contracts. As argued in the

previous section, all type-2 contracts must have arisen out of type-3 contracts or covenants

of mutual trust of which somebody was the first performer. In this case, a captor agrees to

release a prisoner on the condition that the prisoner will afterwards compensate the captor.

In Example A Hobbes assumes that the prisoner has already been released, that is, that the

captor was the first performer to the original covenant of mutual trust. The first thing to

notice about this case is that the captor has acted irrationally in releasing the prisoner in the

first place because the captor cannot reasonably expect that the prisoner will keep his end

of the bargain. For all the captor knows, he might die at the hands of this very prisoner in a

future battle. The captor has therefore failed to act (rationally) on his own duty of self-

preservation and so the type-2 contract of Example A only gets off the ground because

someone was irrational enough to be the first performer on a covenant of mutual trust

without good enough reason to trust the other party. Only a breach of prudential rationality

(the captor’s) can trigger an obligation of justice in the state of nature (the prisoner’s).

Example A only shows that bonds of justice can exist in the state of nature when people act

26 Hobbes by no means thought that “promises made out of fear [are] sacrosanct” (Curley 1990, p. 193).
His point is simply that fear as such plays no role in determining the validity of a contract or a promise. Because
Examples B and C help isolate and “test” the normative significance of the motive of fear, they serve an
important theoretical role and should not be discarded as “aberrations” (ibid.).

50
irrationally. Since it was never rational for the captor to be the first performer of the original

covenant of mutual trust, Example A still fails to show that that contract (as opposed to the

residual type-2 contract) was ever valid to begin with.

When we look at Example A from the point of view of the prisoner, it turns out that

the captor’s irrational first performance does trigger a binding obligation on the prisoner’s

part given the context assumed by Hobbes’s description. The relevant context is one of

iterated interaction in which reputational effects come to bear on an individual’s rational

calculations. Should the prisoner of war renege on his promise to pay a ransom, and should

that become a matter of widespread awareness, the prisoner no longer has any reason to

hope that future captors would even consider releasing him. There is a future cost attached

to a reputation for not keeping one’s word, as Hobbes famously remarked in his response to

the “Foole” (L XV.5).27 In a social world were wars were frequent and often prolonged

events, no prisoner of war could stand to gain by giving his enemies every reason not to

release them in future instances of capture. This analysis further tempers the implications

of Example A for the possibility of creating bonds of justice in the state of nature. Too much

would have to be assumed to make the state of nature a social world of repeated and stable

27 For a particularly illuminating interpretation of Hobbes’s reply to the Foole, see Hoekstra 1997.
Hoekstra makes two independent claims. The firs is that Hobbes agrees with the fool that keeping one’s
promises (in type-2 covenants) is sometimes prudentially irrational, though he disagrees with the fool “about
the extent and the nature of the divergence.” The second claim is that Hobbes “regards the way the Foole
maintains his doctrine to be self-contradicting” (p. 622). Whatever one makes of Hoekstra’s first claim, the
second is very compelling: the greatest folly of Hobbes’s fool is coming clean about his decision procedure!
I think that the best way to understand the substantive disagreement between Hobbes and the (silent) Foole is
this: while Hobbes and the Foole agree on the criterion of goodness—self-interest in general, self-preservation
in particular—, they disagree on the optimal decision procedure for individual actions—promise-keeping
policy vs. evaluating the prudential rationality of each and every promise (see Railton 1984, esp. 149-150, 155-
156, for the distinction between decision procedures and criteria of goodness). For similar views of Hobbes’s
reply to the Foole, see Kavka (1986, pp. 358-360) and Curley (1990, p. 192).

51
enough interactions for reputational costs to render the third law of nature an optimal

rational policy for everyone in the event of a type-2 contract.

The second interpretative issue I want to address concerns the kind of normative

requirements expressed by Hobbes’s laws of nature. The question, as Thomas Nagel puts it,

is “why the individual ought to obey natural law.”28 I have argued that the ground of the

obligation to obey the laws of nature is the supreme rational end of self-preservation: since

self-preservation is best pursued by achieving peace, and the laws of nature outline the

conditions of possibility of sustainable peaceful coexistence with others, my primary duty to

preserve myself entails derivative duties to abide by the laws of nature. (As I have explained,

I will only need to act in accordance with the laws of nature if certain antecedent conditions

obtain; otherwise, having a second-order intention so to act if and when said conditions are

met is sufficient to comply with these derivative obligations. The second-order intention

amounts to fulfilling the duty in foro interno, which counts as fulfilling it all the same.)

This view contrasts sharply with Howard Warrender’s influential interpretation of

Hobbes.29 Warrender argues for two distinct theses: that the normativity of the laws of

nature is moral rather than prudential; and that there are no purely prudential obligations

28 Nagel 1959, p. 68.

29 See Warrender 1957, who drew heavily on the arguments first proposed by Taylor (1938). More
recently, Alan Ryan has expressed agreement with the thrust of the Taylor-Warrender thesis: “I take it for
granted that Hobbes’s understanding of obligation is that obligation is a moral, and not simply a prudential,
matter” (2012 [1988], p. 192). Chou (2013) also defends the moral reading of Hobbes’s laws of nature.

52
at all for Hobbes. It seems to me that neither thesis is consistent with Hobbes’s system or

sufficiently supported by his writings.

Warrender believes that the laws of nature are distinctly moral requirements.

According to him, the prudential maxim of self-preservation is only a psychological principle

that explains how human beings can be motivated to act at all, namely, when the end pursued

is (perceived by them as being) instrumental to their self-preservation. On this view, self-

preservation is a “validating condition” for any maxim of action to be motivationally

efficacious.30 But, Warrender insists, self-preservation qua psychological principle is not

therefore the ground of obligations for Hobbes. The normativity of the laws of nature stems

not from their being instrumental to my self-preservation, but instead from their status as

divine commands. “Thus the reason why I can do my duty is that I am able… to see it as a

means to my preservation; but the reason why I ought to do my duty is that God commands

it.”31 The laws of nature qua divine commands have a moral, non-prudential character

because they express God’s interest in “the constant preservation of men in multitudes,

based on concern for the conservation of society or of men in general.”32 Warrender thus

30 Warrender 1957, p. 14.

31 Op. cit., p. 213, explicitly developing Taylor’s claim that “There really are two distinct questions before
Hobbes, the question why I ought to behave as a good citizen, and the question what inducement can be given
me to do so if my knowledge of the obligation to do so is not in itself sufficiently effective” (1938, p. 407). The
radical separation between sources of obligations and motivational inducements to act on one’s obligations is
typical of “externalist” theories of reasons for action (Williams 1981 [1980]) and realist accounts of normativity
(e.g., Raz 2005, pp. 5-6). I think that Hobbes—like most empiricist philosophers—cannot accept an externalist
view of reasons. If I am right about this, and given his clear moral anti-realism (see section 1.3), then Hobbes
cannot be read as endorsing either of the two metaethical premises that most naturally justify the
ground/motive distinction. This is yet another reason to reject the Taylor-Warrender thesis.
32 Nagel 1959, p. 71. Warrender’s main contribution to Taylor’s earlier formulation is precisely this
rationale for the specific rules that God has sanctioned as laws of nature. Taylor simply ascribes to Hobbes a
“consistent” and “strict” deontology (1938, pp. 415, 423), claiming that “A certain kind of theism is absolutely
necessary to make the theory work” (p. 420).

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casts the laws of nature as irreducibly other-regarding principles of action rather than

maxims of self-interest that, as it happens, entail benefits for other people as well.

Warrender thinks not only that the laws of nature are paradigmatic cases of moral

normativity, but also that morality is the only source of obligations for Hobbes. He seems to

believe that because the principle of self-preservation is a mere psychological generalization,

it cannot also be a source of rational requirements in its own right. Warrender’s argument

against the normativity of self-preservation takes the form of the following reductio: “If self-

preservation were meant to be taken as the principal duty of each individual, one would

expect Hobbes to have regarded the precept that we should defend ourselves as a law and

not as a right, and that we ought to use the advantages of war where peace is unobtainable.

As his words stand, however, the fundamental law of nature is not 'preserve thyself,' but

'seek peace,' and the further laws of nature are derived from the latter precept."33 There is,

Warrender suggests, no “law” of action grounded in the value of self-preservation; it is,

rather, a mere “right.”

This argument has no bite against Hobbes. For there is no inconsistency in Hobbes’s

conviction that self-preservation is both a duty and a right. In fact, a duty to  is always a

fortiori a right to  because “RIGHT consisteth in liberty to do or to forbear” (L XIV.3): I can

only have a duty to do something that I am at liberty to do in the first place.34 I must be free,

i.e., I must have a right, to do that which I ought to do.35 The fact that Hobbes refers to self-

33 Warrender 1957, p. 216.

34 To borrow Berns’s phrase, my right of nature is a “blameless liberty” (1987 [1963], p. 401).
35 This is precisely why “A former covenant makes void a later” (L XIV.28). If the former covenant binds
me not to , then I no longer have the right to . I can therefore make no future covenant to  because I lack the
requisite right.

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preservation as a “right” lends no support whatsoever to the view that there are no duties

grounded in self-preservation. Admittedly, the demands of self-preservation are not

properly speaking obligations, given the technical meaning Hobbes attaches to the term

(“there being no obligation on any man which ariseth not from some act of his own,” that is,

by a voluntary agreement with others, L XXI.10). But not all duties are obligations. In fact,

the most important duty of all—the duty to preserve myself—is not an obligation because it

is in no way related to an antecedent voluntary agreement. Nor are the duties of a sovereign

to its people “obligations,” for they are eminently non-contractual, as we shall see in Chapter

3. There is no reason to follow Warrender’s refusal to acknowledge the normative validity

of prudential duties.36

Nor is there good reason to ascribe a distinctly moral, as opposed to prudential,

character to the laws of nature. For the sake of argument, we can concede that for Hobbes

the laws of nature are only properly so-called “if we consider the same theorems, as

36 Richard Tuck seems to side with Warrender’s contention that self-preservation is a liberty-right as
opposed to a duty: “The thing which Hobbes is interested in, and which made this a right or a liberty and not a
duty, was that in nature we are each to do what we want in order to preserve ourselves. It is this open-
endedness, this dependence solely upon the will of the individual agent, which is important about a right, and
it was this which Hobbes captured by describing our natural capacity to make our own decisions about how to
protect ourselves as a right” (1989, p. 63). Tuck is right to highlight the fact that the only guide to action for
the sake of self-preservation in the state of nature is one’s own private judgment and the absence of shared
norms of conduct does fit the common-sense idea of a liberty-right (i.e., doing as one sees fit). But while Tuck’s
emphasis on this observation is well taken, I see no reason to deny that self-preservation is also a duty. In fact,
if it were not, the laws of nature would lack any normative grip on us. If self-preservation were only a liberty-
right, and peace is required as a means to our self-preservation, whence the duty to seek peace? It would seem
to follow instead that we only have a liberty-right to seek peace if we so wish. That is clearly not what Hobbes
thinks.
The claim I argue for—that a Hobbesian duty to  presupposes a liberty-right to —is consistent with
Tuck’s belief that the converse does not hold: “it is possible in a state of nature to do things, and to want to do
things, which we have no right to do” because there is no plausible sense in which they are conducive to self-
preservation, such as “drunkenness or cruelty” (1989, p. 60). However, because the standard of judgment for
how any given act relates to self-preservation is entirely subjective, Tuck’s observation has less practical import
than he realizes: we have no right to do what is not conducive to our self-preservation by our own, subjective
lights.

55
delivered in the word of God, that by right commandeth all things” (L XV.41). 37 This is,

however, only a definitional point about the technical meaning Hobbes attaches to the term

“law”: “law in general is not counsel, but command; nor a command of any man to any man,

but only of him whose command is addressed to one formerly obliged to obey him” (L

XXVI.2). The laws of nature qua laws are God’s authoritative commands, but nothing is lost

in viewing them (also) as “theorems,” “precepts” or “general rules” of prudential rationality.

The inverse is also true: if we do not view them as prudentially rational precepts, then very

little is gained by insisting on their divine sanction.

I find no argument in Hobbes that gives conceptual priority to the description of the

laws of nature as divine laws. If he usually used that term to refer to the theorems of self-

preservation, it may have been simply to underline his engagement, and disagreements, with

the natural law tradition that preceded him. The point of acknowledging that the laws of

nature are only properly so-called qua divine commands was Hobbes’s way of rejecting

Grotius’s idea that the putative universality of natural law was grounded in universal

agreement about its content. Hence Hobbes’s point that “men use to call” natural laws “laws,

but improperly” (L XV.41), i.e. without due regard for what it means for something to be a

law.38 At any rate, even if one believed that the description of the laws of nature as divine

commands is theoretically more fundamental, the fact remains that Hobbes “considers even

37 I say “for the sake of argument” because Hobbes drops the reference to God altogether in the 1668
Latin edition of Leviathan: “Dictamina haec rationes nomen quidem obtinuerunt legum; sed improprie
dictarum. Sunt enim de iis rebus quae ad conservationem hominum conducunt, tantum theoremata. Lex
autem, propie dicta, est vox imperantis, vel prolata vel scripta, ita ut omnes qui obedire tenentur, sciant vocem
eius esse.” The definitional point remains (lex presupposes an authority with the right to command, an
imperator) but there is no explicit mention of God. However, this should not be taken as conclusive evidence
of Hobbes’s considered views because there are reasons to think that “at least substantial parts of the Latin
[edition] are prior to the English” (Curley 1990, p. 219).
38 On Grotius’s doctrine of natural law as consensus gentium and Hobbes’s criticisms thereof, see Tuck
1989, pp. 20-22.

56
our obligation to obey God a prudentially grounded one.”39 Ultimately, even qua divine

commands, the laws of nature are binding only as indirect means to one’s self-preservation.

Warrender’s focus on one of several and equally adequate descriptions of the laws of

nature—i.e. as divine commands rather than theorems of rational prudence—oversimplifies

Hobbes’s view and lends no support to the claim that natural law constitutes a recognizably

moral, non-prudential realm of reasons for action. For all their other-regarding connotations

and effects, the Hobbesian laws of nature ultimately rest on the motivational and normative

pull of self-interest.

39 Nagel 1959, p. 76.

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CHAPTER 2. ASSURANCE AND AUTHORIZATION

I have argued in Chapter 1 that on the (plausible) assumption that human beings are

predominantly self-seeking, immersed in ceaseless competition for scarce of resources, and

justifiably mistrustful of each other, the state of nature will be state of war. In virtue of that

inference Hobbes can justifiably assume that it is rational for everyone to want to leave the

state of nature. As we have seen, the way out of the “war of all against all” is to act on the

laws of nature, laying down our individual rights to all things and making it possible for us

to form abiding relations of justice with one another. But the laws of nature bind in foro

externo (i.e., outline what is prudentially rational for us to do) if and only if we can trust that

others will not take advantage of our willingness to “lay down” our right to all things. Peace

would be attainable if only we could enter into valid (hence binding) covenants of mutual

trust, but that is impossible in the violent state of nature in which everyone’s unpredictability

and fallible rationality are a matter of common knowledge.

Building on the arguments in Chapter 1, section 2.1 argues that the fundamental

problem of social life in the state of nature should be modeled as an assurance game, contrary

to the still common view that it resembles a prisoner’s dilemma. The assurance

interpretation lends further support to the analysis in section 1.2, since it also emphasizes

the common knowledge of the fallibility of human rationality. I then explain how the

sovereign can solve the assurance problem because the covenant of political incorporation

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is the only valid type-3 contract that can take place in the state of nature, as it alone is a self-

enforcing covenant of mutual trust (section 2.2). The state of nature is not inescapable after

all. In section 2.3 I explain why, for Hobbes, the sovereign is also a stable solution to the

problem of assurance. The reason is that the covenant of incorporation is binding on subjects

per the third law of nature: they therefore have an obligation, grounded in consent, to do (in

foro externo) as the sovereign commands. It is easy to miss the crucial distinction between

the roles of consent and fear in Hobbes’s theory. Whereas fear is the most reliable incentive

to keep people to their covenants, consent is the source of contractual obligations. Subjects

are not obligated to sovereigns because they fear them; they are obligated merely in virtue

of having consented to their authority, and fear only helps ensure that they will in fact do

what they have an obligation to do per the third law of nature. A clear understanding of the

distinct roles of fear and consent in Hobbes’s theory helps make sense of his insistence that

sovereignty by acquisition is normatively on a par with sovereignty by institution, as I argue

in section 2.4. It is nevertheless a major defect of his political though that Hobbes never

developed a robust account of attributed consent, without which his argument for the

equivalence of the two modes of authorization remains incomplete.

2.1 Trust in Fear

The impossibility of mutual trust is not only due to people’s failure to be fully rational,

as if human shortsightedness was all that stood on the way to peace. In fact, no amount of

enlightenment as to one’s “true” self-interest can ever count as a sufficient guarantee that

others will be equally rational—and that is the real problem. Nor is it just a matter of

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identifying the “outliers” amongst us who are afflicted by the pathology of vainglory, and

who are therefore conspicuously unreliable partners for social cooperation. And contrary to

much contemporary scholarship on Hobbes, nor is the state of nature a version of the

prisoner’s dilemma of game theory. The fundamental problem of the state of nature is one

of assurance.1

Because the Hobbesian state of nature has so often been mischaracterized as a

prisoner’s dilemma, it is worth explaining what is wrong with that interpretation.2 The first

thing to notice is that the typical Hobbesian agent in the state of nature does not fit the

standard description of what motivates participants in a prisoner’s dilemma game. As Alan

Ryan is right to point out, “[t]he essence of the prisoner’s dilemma is that because the parties

to it are [personal] utility maximizers, opponents in the game will always try to exploit each

other, and they know it. Hobbesian man will not. He is not a utility maximizer, but a disaster

avoider.”3 More importantly, the prisoner’s dilemma does not fit the logic of Hobbes’s second

law of nature, viz. that one ought to cooperate with others if others are willing to cooperate

as well.

1 Lloyd and Sreedar neglect this last and, to my mind, correct interpretation in their review of the main
scholarly accounts of why “our communal life is prone to disaster” in the Hobbesian state of nature (2014, pp.
7-8). Tuck also fails to highlight the importance of assurance when he argues that the fundamental problem of
the state of nature is the absence of interpersonal moral conventions (1989, pp.63-4). The lack of a shared
moral understand is a problem in the state of nature, and the Hobbesian sovereign does indeed solve it. Yet
assurance is a more fundamental difficulty. In fact, reliance on private judgment is problematic because it
exacerbates the lack of assurance and the impossibility of mutual trust among people in a state of nature.
2 Interpreters who endorse the prisoner’s dilemma model of the state of nature include Gauthier (1969,
esp. 76-89) and Rawls (2007 [1983], pp. 73-75).
3 Ryan 2012 [1996], p. 172. Indeed, prospect theory fits Hobbesian psychology much better than the
standard expected utility maximization model of rational behavior. The key insights of prospect theory are,
first, that “the carriers of value are changes in wealth or welfare, rather than final states” and, second, that
“losses loom larger than gains” (Kahneman and Tversky 2000 [1979], pp 32-33)—two principles that Hobbes
would have surely found congenial.

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Consider the pay-off structure of a prisoner’s dilemma:

Player B

Cooperate Defect

Cooperate 3, 3 1, 3
Player A
Defect 3, 1 2, 2

Table 1. Prisoner's Dilemma Payoffs

The prisoner’s dilemma, like most games we play with (or against!) other people, is

an instance of social interaction with imperfect information. Even if Player A and Player B

could communicate with one another, neither can know for sure what the other will decide

to do. As I indicated in section 1.2, other people’s intentions and dispositions are ultimately

inscrutable to us. Granting for the moment that players are personal utility-maximizers, they

will therefore act in whichever way would benefit them most whatever the other player does.

If we simply look at the outcome that is best for both players (the socially optimal outcome),

we might be led to infer that A and B should cooperate if they behave rationally. But the

truth is very much the opposite: they should, if rational, defect. If A and B are rational

enough, they will end up with the worst collective outcome.

Consider the game from A’s point of view. A might initially prefer that they both

cooperate, since cooperation rewards both players with the highest payoff they can aspire

to in this game (3 each). However, if she cooperates and B does not, she will be the sucker;

B will have cheated on her, leaving her with her worst possible individual payoff (1). And

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indeed why should B not cheat on her, since B will do equally well so long as A cooperates?

Obviously, A has no reason to cooperate given her ignorance of what B will in fact do. By

contrast, if she defects, then under no circumstance will she be left with her worst possible

individual payoff. With the defection option, A’s worst-case scenario is that B will also

defect—in which case they each get 2. Defecting ensures that A will not be the sucker and it

leaves open the possibility of getting her highest possible individual payoff in case B actually

cooperates (3). Even if A knew with absolute certainty that B would cooperate, there would

still be no reason for A to cooperate rather than defect, as she gets the same payoff either

way. In sum, A can never do better by cooperating rather than defecting, whatever B does

and even with perfect knowledge of what B will in fact do. Since the exact same reasoning

applies to B, defection is the strictly dominant strategy for both players. So long as they are

rational, neither will choose to cooperate.

If the state of nature were a prisoner’s dilemma, the Hobbesian sovereign could not

possibly overcome it for the simple reason that establishing a sovereign would presuppose

the cooperation that, by construction, is only possible if there already is a sovereign in place.4

When defection is the strictly dominant strategy, the only way to induce cooperation is for a

third party to change the game altogether by altering the expected pay-offs of defection and

cooperation. But the sovereign can only change the game in that way by exercising a power

granted by the participants’ agreement to cooperate—and that agreement would not occur

unless there was already a sovereign in the background. The prisoner’s dilemma is a problem

4 Moehler 2009, p. 311. Moehler’s excellent discussion of game-theoretical approaches to Hobbes gives
compelling reasons to reject finitely and infinitely iterated as well as one-shot prisoner’s dilemma models. It
also explains why the so-called “assurance dilemma” game (not to be confused with the assurance game
proper) cannot work either.

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of compliance, but “[t]he problem of compliance… arises only after society [i.e., the

sovereign] is established.”5 It cannot explain how (political) society can be established to

begin with. If the state of nature were a prisoner’s dilemma, there would be no way out of it.

The assurance game differs from the prisoner’s dilemma in the following way: while

defection is the strictly dominant strategy in the latter (i.e. it is the rational course of action

for each player whatever the other does), in the former cooperation is the pay-off dominant

outcome but its realization “depends on the individuals’ beliefs about their opponents’

behaviors:”6

Player B

Cooperate Defect

Cooperate 4, 4 1, 3
Player A
Defect 3, 1 2, 2

Table 2. Assurance Game Payoffs

The classic example of an assurance game is Rousseau’s stag hunt: “If a Deer was to

be caught, everyone clearly sensed that this required him faithfully to keep his post; but if a

hare happened to pass within reach of one of them, he will, without a doubt, have chased

after it without a scruple and, after catching his prey, have cared very little about having

caused his Companions to miss theirs” (SD II.9). To make Rousseau´s scenario more formal,

5 Op. cit., p. 309.

6 Op. cit., p. 307.

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suppose A and B are both hunters and that it is in their interest to catch some prey to eat.

They face two options: they can cooperate to hunt a stag which neither can hope to catch

individually, or they can each go after a hare for which they would not require the other

player’s assistance. Going after the hare is appealing because success does not depend on

another’s cooperation. However, a hare is nowhere nearly as satisfying as (even half) a stag.

So it is optimal for both A and B to cooperate in order to successfully hunt the stag—if only

they can trust one another not to abandon the joint enterprise when tempted to go after a

hare that is easy to catch. Herein lies the key difference between the assurance game and

the prisoner’s dilemma: whereas the certainty that B will cooperate is irrelevant to A’s

strategic choice in a prisoner’s dilemma (A is indifferent between cooperating and defecting

if B’s cooperation is a given), knowing that B will in fact cooperate completely changes A’s

rational course of action in the assurance game. If A knows that B will cooperate in hunting

the stag and will not be tempted to chase his own little hare, then A is unequivocally better

off cooperating as well. In other words, A does not have a strictly dominant strategy in the

assurance game, as her optimal course of action depends on what she thinks B will actually

do. Because the exact same reasoning applies to B, the intention to cooperate is common

knowledge among the parties to an assurance game. What is lacking is the assurance for

each that every other player will reliably behave in accordance with the intention that we all

openly admit is rationally optimal for each individually and for all collectively.7

7 An alternative way to highlight the difference between an assurance game and a prisoner’s dilemma is
by considering how common knowledge of infallible rationality would bear on people’s optimal strategies. If
it is common knowledge that people unfailingly do what is optimally rational, then the prisoner’s dilemma is
even more intractable, whereas the assurance problem would not even arise. We need a third-party guarantor
because our fallible rationality (our weakness of will) is common knowledge. See section 1.2 for the importance
of such common knowledge in the Hobbesian state of nature.

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Recall that the problem with covenants of mutual trust in the state of nature is not

that anyone would want to defect, but only that no one can reasonably expect others not to

defect. Unlike the solution to the prisoner’s dilemma, a solution to the assurance game does

not need to change the (expected) pay-offs of defection and cooperation. We do not need a

third party to change the nature of the game, but merely to give each of us good enough

reason to expect that every other player will stick to their end of our mutually beneficial

type-3 contracts. At the time of contracting, we all openly acknowledge that each is better

off cooperating, but we also know that anyone may in the future act contrary to that

rationally optimal intention. In the assurance game, the problem is not that “trust is

irrational,” but rather that “it isn’t rational to trust people without a good reason.”8 A third-

party can solve the issue by serving as guarantor that future behavior will be in line with

present intentions.9 The guarantor’s punitive power only increases the cost of defection,

which we all know to be suboptimal for each anyways. (This is why I say that the sovereign

does not change the nature of the game. The sovereign does not make cooperation more

rational than it was from the start; it simply makes the motivation to act rationally more

stable, by increasing the cost of alternative—irrational—courses of action.) Because your

promise to keep your end of the bargain is now backed by a guarantor with the power to

punish you should your intentions change in the future, I can finally have a reasonable

expectation that you will in fact keep your word. This is just what Hobbes means when he

says that the third-party enforcer “shall deprive [the parties] of their private judgments” (EL

8 Binmore 2007, p. 70.

9 Notice that the assurance problem helps make sense of the validity of obligations derived from type-2
contracts in the state of nature (as discussed in section 1.3). When a first performer naïvely delivers on his
promise (i.e., cooperates), the second performer faces no issue of assurance, hence is obliged to keep her word
(i.e. it is rational for her to cooperate in turn).

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XV.10)—that is, the enforcer shall relieve them from acting on any any future (irrational)

private judgments that might tempt them to chase a small hare rather than patiently go after

the big stag.

Once the problem of the state of nature is correctly modelled as an assurance game,

the rationale of Hobbes’s solution becomes transparent. Human beings need to erect the

“common power, by the fear whereof they may be compelled both to keep the peace amongst

themselves, and to join their strengths together, against a common enemy” (EL XIX.6,

emphasis added). Hobbes’s name for this “common power” is the sovereign. The sovereign

is the only possible solution to the structural impossibility of trust, to wit, the lack of

assurance about other people’s future behavior grounded in the common knowledge of our

fallible rationality. From every (rational) individual’s point of view, submission to a

sovereign tasked with imposing and enforcing penalties for breach of contract (defection) is

the only, and indeed the perfect, artificial substitute for mutual trust. If we both submit to

the same common power, I no longer need to trust you, or your sincerity or your

steadfastness, for us to make valid covenants of mutual trust. All I need to do is trust the

motivational efficacy of your fear of state sanctions to keep your future temptation to defect

in check. In the last analysis, “The passion to be reckoned upon is fear” (L XIV.31).

2.2 The Role of the Sovereign

A sovereign capable of inducing cooperation among rational agents must be a power

great enough to be “able to over-awe” them all (L XII.5). Otherwise, its threats of sanctions

for breaches of trust would hardly be credible, hence insufficient to preempt potential

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defectors, hence incapable of solving the problem of assurance. To meet this condition,

individuals in the state of nature must transfer their right to all things to one and the same

common power. In transferring the liberty to do anything we deem necessary to our

individual self-preservation, we “declare to that other accepting thereof” our “will not to

resist, or hinder him” (EL XV.3). As the inaugural act of social cooperation, this commitment

makes us liable to be sanctioned by the sovereign should we ever resort to our private

judgment and act as if we still had a right to all things. Because the sovereign can only retain

its supremacy if nobody can backtrack on this commitment, the transfer in question must be

irrevocable (EL XVI.14).10

Of course, it would be utterly irrational to give up one’s original right of nature unless

a further condition is met—to wit, that everyone else do the same, so that nobody is thereby

made vulnerable to attack by others. Unless the transfer to the “common power” is made by

10 Rawls is right to hold that “[A]uthorization is not simply the renunciation of a right on my part. Rather,
authorization enables someone else to use my right to act in a certain way. Thus we do not renounce or
abandon our rights in authorizing the Sovereign; rather we authorize the Sovereign to use our rights in certain
ways… That is, if we authorize the Sovereign to use our rights, then the Sovereign has rights that the Sovereign
did not have before” (2007 [1983], p. 80). For clear examples of the renunciation interpretation, see Wolin
2002, pp. 254-255, and Steinberger 2008, p. 559.
One might think that renunciation should suffice for Hobbes’s purposes because the sovereign would
then be the only person left with his original “right to all things” intact. And what more would be necessary to
serve as a “common power”? However, if authorization just meant renouncing one’s right of nature, we would
not be able to make sense of Hobbes’s crucial claim that subjects are the authors of the sovereign’s actions (I
explain what this means in Chapter 3). Only a transfer, as opposed to a mere renunciation, of our rights can
account for the fact that the sovereign’s deeds are imputable to subjects. It is important to keep track of this
difference, as it can be easily overlooked (as in Skinner’s use of “giving up” and “handing over” as equivalent
formulations of what the covenant of incorporation involves in 1999, p. 26).
Patrick Riley seems to favor the renunciation interpretation, as indicated by his gloss on L XIV.6:
“Giving rights to a sovereign, then, is rather like tearing down everyone’s walls except the ruler’s; in a transfer
we allow the sovereign his full natural right while curbing our own” (1982, p. 51). As I said, this reading cannot
explain why subjects are authors of the sovereign’s deeds. It also neglects the immediately following section
in the same passage, where Hobbes writes: “Right is laid aside either by simply renouncing it or by transferring
it to another. By simply RENOUNCING, when he cares not to whom the benefit thereof redoundeth. By
TRANSFERING, when he intendeth the benefit thereof to some certain person or persons” (L XIV.7). It is wrong
to think that subjects do not care who the sovereign turns out to be; on the contrary, the direct appointment of
the beneficiary of the political covenant (i.e. the would-be sovereign) is one of its indispensable clauses.

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every individual in the state of nature, it would be irrational for any one person to commit to

it: that individual would expose herself to attacks by others, contrary to her duty of self-

preservation. The “laying down” of the virtually limitless scope of the right of nature must

therefore be universal, simultaneous, and a matter of common knowledge. And thus the

“common power” can only arise “by covenant of every man with every man,” so as to “confer

all their power and strength upon one man, or upon one assembly of men, that may reduce

their wills, by plurality of judgment, unto one will” (L XVII.13). The sovereign shall thereafter

act in all our names with the aim of ensuring that it is rational for each to do what everyone

agrees is best for all—to cooperate in peace with one another by reliably honoring our

covenants.

The sovereign arises out of a particular kind of social bond. It is not merely a case of

“many wills concurring in one object” (DCv V.5). This kind of convergence on a shared

objective, which Hobbes calls “concord” (EL XIX.4), is insufficient for the purpose at hand. If

we were all rational and could reasonably expect to be always so in the future and this was

a matter of common knowledge, perhaps concord could do the trick. But nobody is immune

to the pathologies of vainglory and other forms of irrationality. We are all only fallibly

rational. Consequently, concord would leave the conditions of social cooperation dependent

on the contingent and less than secure foundation of what we happen to will, here and now,

versus tomorrow and the day after. The assurance problem calls for more than concord or

the contingent convergence of individual wills at a given point in time. “[I]t is requisite that,

in those necessary matters which concern peace and self-defence, there be but one will of all

men” (DCv V.6, emphasis added; cf. EL XIII.8 and XIX.4-6). The procedure whereby a

plurality of individuals unite into a single will is what Hobbes calls incorporation (L XLVI.13).

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To summarize: the solution to the problem of assurance is to authorize a common

power capable of sanctioning any violation of contractual obligations, a sovereign whose will

counts as the will of every individual subject in virtue of a covenant of incorporation. And as

we shall see, the act of authorization of the sovereign is the only type-3 contract that could

possibly be valid (hence binding) in the Hobbesian state of nature.

The institution of the common power radically transforms the normative landscape

of social life because the existence of the sovereign satisfies the antecedent conditions for

the laws of nature to oblige in foro externo. Once there is an enforcer, covenants of mutual

trust become valid precisely because they are justiciable. There is someone to adjudicate

disputes, enforce compliance, and impose sanctions, and so no party can now have a

“reasonable suspicion” that the other will not perform its part.

The political covenant of incorporation has three distinct features. First, it is an

agreement of each with all, but not a covenant made with the sovereign who is called on to

serve as the common power. It is rather a series of “mutual compacts of single men with

each other” (DCv VII.7). Second, what we agree to do in virtue of the covenant is to transfer

our right to all things to one and the same sovereign as a “free gift,” such that “a man

transferreth any right of his to another, without consideration of reciprocal benefit” (EL

XV.7).11 Of course, it is not literally true that there is no benefit expected from the free gift

made to the sovereign. Hobbes’s point is merely that the benefit is not contractual, that is,

the gift involves no commitment on the beneficiary’s part. Because they are not contractual,

the benefits expected from the sovereign are non-justiciable. Finally, as with every transfer

11 See p. 68n10 for the contrast between a mere renunciation and a transfer of the right of nature.

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by gift, the covenant of incorporation can only succeed if he “to whom [power] is transferred”

gives “a sufficient signification of his acceptation thereof” (EL XV.4). It is striking that Hobbes

does not seem to even fathom that a would-be sovereign could refuse the free gift in

question.12 Hobbes assumes that whoever is chosen to serve as the common power will

accept the free gift as a matter of course, as it in no way harms and, on the contrary, greatly

benefits the would-be sovereign. Notice that this assumption also explains why Hobbes does

not seem to worry that the sovereign may fail to deliver on the main benefit we expect from

him, namely, that he will keep us all to the covenant of incorporation. Though the sovereign

does not have a contractual obligation to do even that, we have every reason to expect that

he will because he is the primary beneficiary of the contract to which we wish to be kept.13

With these observations in mind, one can see why the political covenant of incorporation has

the unique attribute of being a self-validating type-3 contract: the covenant creates the

12 I owe this observation to Philip Pettit. Oddly enough, one of the few scholars who notices that the
sovereign’s acceptance is an indispensable condition for the perfection of the covenant also makes the mistake
of giving a contractual connotation to that acceptance: “to make the transaction complete there must be an
acceptance of the proposed transfer of rights by the beneficiary… Hence, though Hobbes does not say much on
the point, there is a bargain to which the sovereign is a party in the constitution of civil society… By accepting
the sovereignty he has virtually contacted, not indeed to submit his commands to the judgment of any council
or body of ministers, but to use them only as he, in his conscience, deems to be for the common safety and
welfare” (Taylor 1938, pp. 417-418). Taylor’s view is inadequate on two counts. First, it is not obvious that
there has to be a bargain prior to the appointed sovereign’s acceptance. On the contrary, it seems that no
rational individual would impose any terms on accepting what is effectively an office of unlimited (absolute)
authority. The free gift of sovereignty is an offer nobody can rationally refuse. Second, it is inconsistent to treat
the acceptance as a form of contract while denying that the resulting obligations are not justiciable. If the
acceptance is not a contract, then it generates no obligations on the sovereign; and if it is a contract, then the
sovereign’s obligations are also justiciable. Taylor cannot have it both ways.
13 Sandra Field argues that this is a major flaw in Hobbes’s theory, which by his own standards requires
that there be assurance that the sovereign will be rational enough to do what he is meant to do (2015, pp. 207,
216). Hobbes does seem implausibly convinced that every sovereign’s self-interest largely aligns with the
interests of subjects. But my claim here is a much weaker one, namely that it is always in the interest of both
sovereigns and subjects that the covenant of incorporation be kept and preserved. Because the covenant may
remain in force consistently with the sovereign doing plenty of things that are not in the subjects’ interests, my
assumption is less objectionable than the general convergence-of-interests thesis Field (rightly) criticizes.

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reliable enforcer whose existence is the sole necessary and sufficient condition of its

validity.14

In addition to solving the problem of assurance, the political covenant also addresses

the issue of moral disagreement or evaluative indexicality. Since the sovereign’s will is the

will of all who have authorized it to discharge the role of “common power,” its judgment

replaces everyone else’s private judgments about right and wrong. Private judgment must

now be anchored to the public meaning affixed to our moral vocabulary by the “one will” of

the sovereign. This is part of the price of assurance, but also a beneficial by-product of

incorporation. Thanks to the sovereign’s imposition of univocal norms of moral meaning,

individuals can now communicate effectively through the use of moral language.

Because political incorporation makes covenants of mutual trust possible, and

because it creates the moral conventions that were lacking in the state of nature, the

institution of a sovereign is also the institution of justice itself through its authoritative

pronouncements or “laws.”15 This is the rationale for Hobbes’s recurrent equation of justice

14 For this reason, Ryan’s observation that there may be a question of circularity with the political
covenant is not a real problem for Hobbes. Ryan points out that “It seems that in order to establish a power
that can make us all keep our covenants, we must covenant to set it up, but that the covenant to do so is
impossible to make in the absence of the power it is supposed to establish” (2012 [1996], p. 173). Strictly
speaking, though, it is false that people cannot “make” the covenant without a pre-existent enforcer. The
absence of an enforcer makes the covenant invalid, but it can still be made. The important point is that in the
very special case of the covenant of political incorporation, once it is made, it begets the very enforcer that is
required to validate it.
It also follows from this that Riley is mistaken to believe that “the Hobbesian social contract would be,
in a sense, legitimate before the erection of actual power” (1982, p. 54). The covenant of political incorporation
immediately creates the common power that makes it valid; there is no time gap involved, such that the
covenant is valid “before” the common power comes into being. Riley’s concern about this problem leads him
to argue, also erroneously, that the existence of an enforcer is not necessary for the validity of covenants (p.
53). He confuses the fact that fear is an ancillary motive of compliance rather than the source of obligation with
the fact that the obligation does not bind in foro externo until there is an enforcer. I discuss the relation between
fear and obligation in section 2.3.
15 For Tuck, this is the most important achievement of the political covenant: “that the route to [moral]
agreement must lie through politics… must count as Hobbes’s most distinctive contribution to political theory”
(1989, p. 57).

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with lawfulness: “Where there is no common power, there is no law; where no law, no

injustice” (L XIII.13). It is the function of the civil laws qua judgments of the sovereign “to

set forth and make known the common measure by which every man is to know what is his,

and what another’s; what is good, and what bad; and what he ought to do, and what not; and

to command the same to be observed” (EL XX.10; cf. DH XIII.8-9). Indeed, “declaring what is

right” amounts to nothing more, and nothing less, than “explaining the laws” (DH XIII.6). As

a result of the political covenant of incorporation, “the law is the public conscience” (L

XXIX.7).

2.3 Consent, Fear, and Voluntariness

The rationality of submitting to a common power cannot by itself guarantee its future

stability. Even after the political covenant is made, social life is ripe with opportunities for

seemingly harmless defection, and nobody is immune to the folly of being tempted to defect.

However powerful the sovereign may be, there will always be opportunities for individuals

to (think that they can) safely act on their own private judgement in contexts that escape the

sovereign’s watch. Such defection can easily escalate and slowly undermine the assurance

for the sake of which the common power was erected in the first place. What, then, is the

reason for the would-be free rider to abstain from defection when this option seems costless

and inconsequential?

The answer to this question is that even the free rider whose defection seems

harmless is bound to obey the civil laws because he authorized the sovereign by consent. The

obligation of political obedience is a special case of the bonds of fidelity grounded in consent.

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It is precisely from a free voluntary act, such as the political covenant, that any and all

obligations properly so-called arise: “in the world it is called injustice and injury voluntarily

to undo that which from the beginning he had voluntary done” (L XIV.7). We have seen that

the obligation to abide by the political covenant depends on there being a common power to

hold all parties “in awe.” Absent the common power, there is no assurance; without

assurance, no common knowledge of the will to refrain from interference with each other’s

affairs; and without such common knowledge, the condition on which I was willing to

renounce my private judgment for the sake of peace is not fulfilled. But while the validity of

the political covenant rests on the fact that there (now) exists a common power, its

bindingness is exclusively a function of the parties’ consent. Fear is crucial to solving the

assurance problem, but it is not itself the ground of political obligation for Hobbes. “[A] man

is obliged by his contracts” while fear merely “compels him to make good his promise” (DCv

XII.2n).

If fear is only an ancillary motive for compliance, but not a source of obligation, then

political authority must always rest on consent.16 This is indeed what Hobbes believes,

without exception: “the right of all sovereigns is derived originally from the consent of every

one of those that are to be governed, whether they that choose him do it for their common

defence against an enemy (as when they agree amongst themselves to appoint a man, or an

assembly of men to protect them), or whether they do it to save their lives, by submission to

a conquering enemy” (L XLII.123, emphasis added). For Hobbes, there is no right to perform

as a state without the consent that confers it, as given by every individual subject. The right

16 See p. 72n14 for an example of the common confusion of fear as an ancillary motive of obedience and
consent as the source of obligations.

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of any state to perform as such—its right to back its directives with the (threat of the) use of

force—just is the aggregation of the individual subjects’ own “rights of nature” once they

have all been voluntarily transferred to the sovereign as a “free gift.”

It is worth recalling that one of Hobbes’s aims was to vindicate the legitimate

authority of existing states: “the present [government] ought always to be preferred,

maintained, and accounted best, because it is against both the law of nature and the divine

positive law to do anything tending to the subversion thereof” (L XLII.82). We must

therefore ask whether his consent-based account of the right to perform as a state can ever

serve such a purpose. The answer turns on the plausibility of the Hobbesian theory of

consent.

There is, for Hobbes, only one necessary and sufficient condition for consent to be

valid and have normative effects: that it be a “voluntary” act. Acts count as voluntary if and

only if they “are such as have beginning in the will,” where the will is simply “the last

appetite” on which one acts (EL XII.2-3). So defined, the class of voluntary actions turns out

to be exceedingly wide, coterminous with the class of deeds that a person purposely

undertakes—whatever the reasons or the circumstances. This much is confirmed by

Hobbes’s own characterization of non-voluntary actions: “Voluntary such as a man doth

upon appetite or fear; involuntary such as he doth by necessity of nature, as when he is

pushed, or falleth, and thereby doth good or hurt to another; mixed, such as participate in

both” (EL XII.3). Provided there is no event external to the agent’s body that is causally

pivotal to the deed, the action counts as voluntary for Hobbes.

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Two things should be noticed about the Hobbesian account of voluntariness. The first

is that it in no way depends on the doctrine of freedom of the will. Hobbes explicitly grants

that the will is fully determined to action by the agent’s (contingent) appetites: “For where

there is appetite, the entire cause of appetite hath preceded; and, consequently, the act of

appetite could not choose but follow, that is, hath of necessity followed… And therefore such

a liberty as is free from necessity, is not to be found in the will either of men or beasts” (DCr

XXV.13). A person’s appetites are in turn fully determined in light of Hobbes’s materialist

and mechanistic metaphysics.17 Yet an action can be deemed free for purposes of

attributions of responsibility to the extent that it is voluntary, where voluntariness does not

depend on the will being “free” in any metaphysical sense.18 The second important point is

that voluntary action for Hobbes turns out to be equivalent to intentional action. An action

can be described as intentional just in case the agent’s reasons for undertaking it also count

as an explanation of its occurrence: the action happened because the agent intended it,

where the intention serves both to explain (causally) and justify (normatively) the deed in

question.19 By contrast, any “action” that is not voluntary is best described as something that

happens to the agent, not as something the agent does. Clearly, Hobbes’s examples of non-

voluntary actions, all of which involve an external physical cause impinging upon one’s body,

17 Hobbes’s mechanistic psychology entails a strictly deterministic view of volition: “conceptions or

apparitions are nothing really, but motion in some internal substance in the head; which motion not stopping
there, but proceeding to the heart, of necessity must there either help or hinder that motion which is called
vital; when it helpeth, it is called DELIGHT, contentment, or pleasure, which is nothing really but motion within
the head…; but when such motion weakened or hindereth the vital motion, then it is called PAIN… This motion,
in which consisteth pleasure or pain, is also a solicitation or provocation either to draw near to the thing that
pleaseth, or to retire from the thing that displeaseth. And this solicitation is the endeavour or internal beginning
of animal motion, which when the object delighteth, is called APPETITE; when it displeaseth, it is called
AVERSION” (EL VII.1-2).
18 What I refer to as voluntary action, Hobbes would simply describe as free action. He therefore took
himself to be a compatibilist rather than an eliminativist about freedom, in contrast with other materialists like
Spinoza (see Chapter 7.2).
19 Here I draw on Donald Davidson’s argument in 1980, pp. 3-9.

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are cases of involuntary deeds. By the same token, his sole condition of voluntariness—

namely, that the will be the cause of the action—amounts to the view that all and only

intentional actions are voluntary.20

There are compelling reasons to resist Hobbes’s view on this point. There are

perfectly familiar situations in which we do things intentionally and yet should not be held

accountable for the consequences because the acts cannot sensibly be said to have been

voluntary. Aristotle, for instance, explicitly argues that voluntariness requires more than

mere intentionality: “Suppose, for instance, that a tyrant tells you to do something shameful,

when he has control over your parents and children, and if you do it, they will live, but if not,

they will die.”21 There is no question that the action at hand is intentional, for the tyrant is

not acting as an external cause impinging upon the agent’s body: the agent still “has within

him the principle of moving the limbs that are the instruments [of the action].”22

Consequently, while the agent’s acquiescence to the tyrant’s threat is “more like voluntary

action,” it is nevertheless “mixed.”23 We may soundly say that the agent acted willingly, i.e.

intentionally, but not voluntarily, and that the responsibility for the “shameful” deed carried

out under the tyrant’s threat falls primarily on the tyrant and not on the agent who was

threatened. The threat has effectively turned the agent into a sort of limb, a mere causal

lever at the service of the tyrant’s intentional and fully voluntary action. While the agent had

20 The class of intentional actions and the class of voluntary actions are both extensionally and
intensionally identical for Hobbes. Voluntary actions just are intentional actions, and vice versa.
21 Aristotle 1999 [c. 340 BC], 1110a6-8.
22 Op. cit., 1110a15-17.
23 Op. cit., 1110a13-14. Aristotle’s “mixed action” is meant to single out intentional actions done under
duress or as a result of threats, where threats are understood as instances of coercion distinct from physical
manipulation. When I am physically manipulated (manhandled), the action is not only non-voluntary but also
non-intentional—even for Hobbes.

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to play his part intentionally, the situation gives us strong reasons not to describe his action

as voluntary.

Hobbes is fully committed to resisting this line of argument. And this for a very clear

reason: that all forms of political dominion arise out of fear, “which is to be noted by them

that hold all such covenants as proceed from fear of death or violence void; which, if it were

true, no man in any kind of commonwealth could be obliged to obedience” (L XX.2). The

Hobbesian theory of consent can only account for existing states’ right to perform as such if

fear in the form of threats is consistent with full-blown voluntariness. Hobbes’s solution is

to insist that voluntary action just is intentional action, since the presence or absence of fear

is immaterial to the intentionality of an act.

Cases of physical force are not a problem for Hobbes, as they are neither intentional

nor (a fortiori) voluntary on his or any other account of action. But cases of acting under

threat and, more generally, of action undertaken for fear (including duress) are much harder.

For Hobbes, they are clearly voluntary acts, as they remain intentional: “those [actions] that

have their beginning from aversion or fear of those consequences that follow the omission

are voluntary actions” (L VI.54). But others, like Aristotle, have rightly doubted that an

intention formed only in response to the fear of threats or under duress can be enough to

render the act voluntary, that is, to make the agent fully responsible and accountable for the

act in question and its consequences. Why, then, agree with Hobbes’s view that fear does not

detract from voluntariness?

Hobbes seems to give only two reasons for his minimalist position on voluntariness.

First, he says, there is nothing distinctive about fear as a motive of action. Fear is like any

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other “perturbation of the mind” (DH XII.1) that can, upon deliberation, become one’s will

(or motive) qua last appetite in deliberation. In fact, fear is one of the two master-motives

of human action: “It is of itself manifest that the actions of men proceed from the will, and

the will from hope and fear” (DCv V.1). Secondly, something done out of fear that is

nevertheless beneficial to the agent must with all the more reason be presumed voluntary:

“It holds universally true, that promises do oblige when there is some benefit received, and

that to promise, and the thing promised, be lawful. But it is lawful, for the redemption of my

life, both to promise and to give what I will of mine own to any man, even to a thief” (DCv

II.16). What is at play here is Hobbes’s commitment to the regulative principle for

attributions of action and intention such that “every man is presumed to do all things in order

to his own benefit” (L XV.31). If the action was beneficial, it must be presumed voluntary,

even if the motive was fear.24

In Hobbes’s view, then, consent is binding because it is voluntary, and it is voluntary

if and only if it is intentional. If consent is the normative foundation of political authority

and obligation, then it must be the case that intentionality alone carries enough normative

weight to hold the agent accountable for the consent he gives even under threat. The

normativity of intentional commitments undertaken out of fear is only enhanced in case they

are also prudentially rational, that is, if the agent stands to benefit from them, whatever the

motive that drives him to consent. So it does not matter that most states have been

consented to out of fear because, first, fear in itself does not vitiate voluntariness and, second,

24 It does not follow from this that consent no longer does any normative work for Hobbes whenever it
is presumed on the basis of benefit. Only consent explains the fact that a sovereign acts in the name of subjects.
A sovereign can act in my name as subject because I have authorized it through consent, not because I benefit
from its existence. Even when benefit is the evidentiary basis for attributions of consent, consent is not
reducible to benefit on Hobbes’s moral accounting.

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living under some state rather than none is the prudentially rational thing to do and want in

the first place. This is the practical, even ideological, rationale for Hobbes’s extremely low

standard of voluntariness and consent.

Albeit remarkably consistent, Hobbes’s theory of consent is unsatisfactory. If Hobbes

were right, it would follow that people should be held accountable and responsible for a great

number of actions for which we typically, and quite reasonably, excuse them. When I do

something immoral under serious threat to me or others, it seems only appropriate to say

that the person threatening me is responsible for the action: “he is a perpetrator[,] not just

an instigator.”25 Threats can effectively make me a mere instrument of another’s intentions

when I am deprived of any reasonable alternative to acquiescing. All of this makes perfect

sense without having to deny that my act was intentional, which strongly suggests that

intentionality does not suffice for attributions of responsibility. If the point of voluntariness

is precisely to ground ascriptions of responsibility, then it surely requires far more than mere

intentionality.26

25 Kamm 1999, p. 177. Kamm’s paper develops strong arguments for the view that under certain
circumstances, moral responsibility for the consequences of an action can fall on someone other than the agent
who causally brings them about. Although she does not frame the discussion in terms of the
intentional/voluntary act distinction, her idea of “substitute actor” (p. 179) essentially means that whenever I
intentionally act on a serious threat, my action is not voluntary despite being intentional; it is not “mine” for
purposes of moral accountability and the person who threatens me must “own” its consequences. (As we shall
see in Chapter 3, the idea that someone other than the causally pivotal agent may be called on to “own” the
consequences of an action is of the utmost importance for Hobbes.)
26 I draw on Oslaretti’ compelling arguments for treating the presence of reasonable alternatives as a
necessary condition of voluntary actions. In her view, in addition to being intentional, a voluntary choice must
be such that it is “not made because there is no acceptable alternative, where the standard for the acceptability
of options is an objective standard of well-being” (2008, p. 112).

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2.4 Two Models of Authorization

Hobbes’s theory of consent has another important dimension that also responds to

his ideological interest in legitimizing existing states. Granted that most actual states have

never been formally and explicitly consented to by their subjects; granted that consent is a

necessary condition of the right to perform as a state; how can we attribute consent to

subjects who have not expressly given it? Hobbes answer is an account of the sort of acts

that constitute evidence of (implicit underlying) consent. The best way to approach this

aspect of his theory, and to appreciate its importance, is to focus on the differences between

his two models for how political authority can be established and how sovereigns come to

possess the right to perform as states.

Hobbes identifies “two ways of erecting a body politic; one by arbitrary institution of

many men assembled together…; the other by compulsion, which is as it were a generation

thereof out of natural force” (EL XX.1). The distinction becomes clearer in De Cive, where he

explains that “they who submit themselves to another for fear, either submit to him whom

they fear, or some other whom they confide in for protection” (V.12). The former is best

exemplified by the situation of those “vanquished in war,” which case is “the natural

beginning of a city.” Submission for the sake of protection (rather than out of fear of a

conqueror) corresponds to “the council and constitution of those who meet together, which

is a beginning by institution” (ibid.). The commonwealth that arises out of submission to a

conqueror is an instance of sovereignty by “acquisition,” whereas the case of a

commonwealth that originates in a political covenant among parties in the state of nature

who seek mutual protection and a solution to their problems of assurance is the

paradigmatic instance of sovereignty “by institution” (L XVII.15).

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I have already explained some of the distinctive features of commonwealths by

institution, in which every person covenants with everyone else to transfer the original right

of nature to a sovereign who accepts said transfers as a “free gift” (see section 2.2). Although

the idea that everyone would actually utter the words of the covenant—“I convey my right

on this party, upon condition that you pass yours to the same” (DCv VI.20)—is somewhat

implausible, it does not pose any theoretical difficulties for Hobbes’s theory of consent, even

if the utterance is motivated by fear (as discussed in section 2.3). The utterance would in

every case be rightly taken to be intentional and hence, as far as Hobbes is concerned,

voluntary. Such words therefore count as perfectly good evidence of consent, better yet, they

constitute consent. The case of sovereignty by institution is unproblematic for Hobbes

because the explicit covenant is fully binding on all parties.27

The case of commonwealths by acquisition is quite different. Hobbes’s view is that a

conqueror may come to possess the right to perform as a state only through of the consent of

the vanquished: “the right of all sovereigns is derived originally from the consent of every

one of those that are to be governed, whether they that choose him do it for the common

defence against an enemy…, or whether they do it to save their lives, by submission to a

conquering enemy” (L XLII.123). The normative foundations of the conqueror’s authority

are, Hobbes insists, indistinguishable from that of a sovereign by institution. It is precisely

in order to make good on this claim that Hobbes is so keen to emphasize the irrelevance of

fear in his account of voluntariness and the normatively binding effects of (intentional)

27 In many ways, Hobbes’s model of “sovereignty by institution” is theoretically primary because it lends
itself to a particularly clear exposition and analysis. But it was not without some practical significance as well,
as in Hobbes’s own time there were cases that closely approximate this model. One notable example is the
1620 Mayflower Compact, which Hobbes very likely knew about (see Gaskin’s note to EL XIX.7 in p. 274).

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consent. If fear cannot vitiate voluntariness, then the consent of the vanquished is

normatively on a par with the utterance by which people can form a commonwealth by

institution.

The crucial difference between the cases of acquisition and institution lies in the

content and mode of consenting. In terms of content, Hobbes suggests that the vanquished

agree to the conqueror’s authority on the understanding that their lives will be spared. To

that extent, the political covenant does involve the conqueror directly, unlike the case of

commonwealths by institution. It does not follow, however, that authorization takes the

form of a series of individual covenants with the conqueror. This would not fulfill the

conditions for the law of nature to bind in foro externo, as each person’s transfer of the right

of nature would not be conditional upon everyone else doing the same. Even in the case of

sovereignty by acquisition, the core of the political covenant is an agreement of each with all,

with one caveat: that each expects the conqueror to spare their lives in return. Perhaps the

best way to put the point is by saying that the authorization of the vanquished is conditional

(each authorizes if everyone does) and prompted by the hope that their lives will be spared.

The conqueror has a duty of fidelity grounded in the third law of nature to spare the

vanquished—but neither the hope of the vanquished nor the (in)gratitude of the conqueror

is backed by a contract, in the strict sense. This is to say that the expectations of the

vanquished are not justiciable.28

Whereas in the case of institution the would-be sovereign only acquires enough

power after the covenant, in instances of conquest the would-be sovereign is already in a

28 So not even in conquest would Taylor’s “contractual” analysis of the sovereign’s acceptance of the free
gift of sovereignty be an accurate reading of Hobbes (see p. 71n12).

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position of extraordinary power before the vanquished consent to its authority. Most

importantly, the identity of the sovereign to be authorized in a commonwealth by acquisition

is plain and obvious to everyone (i.e. it is common knowledge) even before the act of

authorization takes place.29 This entails a difference in the mode of consenting, as the

vanquished do not need to make it explicit who it is that they are authorizing. In fact, they

are not even expected to utter the words of the covenant at all. On Hobbes’s account, mere

acquiescence, an observable disposition not to resist the conqueror—in other words,

subjects’ “going along” with it—, counts as sufficient evidence of consent: “I say the point of

time wherein a man becomes subject to a conqueror is that point wherein, having liberty to

submit to him, he consenteth, either by express words or by other sufficient sign, to be his

subject” (L R&C.6, emphasis added).30

The possibility that there be “sufficient signs” of consent other than “express words”

is critical to Hobbes’s attempt to legitimize existing states, most of which have arisen out of

conquest. But unfortunately, he does not develop anything close to a systematic theory of

the sorts of “signs” that constitute (sufficient) evidence of consent. The most that can be said

for Hobbes’s idea of attributable consent is that it likely rests on his commitment to the sub

29 More formally, we might say that the way the assurance game is framed in cases of acquisition makes
the conqueror a focal point for the vanquished who are to authorize a sovereign. Once people have agreed to
have a sovereign, selecting the identity of the sovereign closely resembles a pure coordination problem of the
sort that can often be solved with minimal communication provided there are strong contextual focal points
(Binmore 2007, pp. 58-59). When the context is conquest, the identity of the conqueror is an obvious focal
point on which the vanquished can coordinate with hardly any communication.
30 Locke would later make a similar point in his account of “tacit consent.” More generally, Locke’s
argument for the role of consent as the normative foundation of the state is rather close to Hobbes’s: “The
Natural Liberty of Man is to be free from any Superior Power on Earth, and not to be under the Will of
Legislative Authority of Man, but to have only the Law of Nature for his Rule. The Liberty of Man, in Society, is
to be under no other Legislative Power, but that established, by consent” (1988 [1689], Book II, Chapter IV,
§22, p. 283). For a helpful discussion of Locke’s debt to Hobbes and a refutation of the view that the Treatises
were aimed mostly against the latter, see Laslett 1988, esp. pp. 21, 33, 67.

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ratione boni principle that I mentioned in section 1.2. It is true for Hobbes that any rational

agent would prefer to acquiesce to a conqueror and live, rather than resist and die. Because

authorizing the conqueror is rational, and because people must always be assumed to act in

their own best interests, “going along” with the conqueror’s commands must be counted as

evidence of consent. After all, those who in fact do not wish to consent, always have the

possibility to resist. Because the prohibitive cost of any alternative to acquiescence does not

make it any less intentional, it is at least consistent on Hobbes’s part to treat observed

compliance as fully voluntary.

Still, the absence of a theory of attributable consent is a weakness of Hobbes’s system.

For he fails to distinguish signs of consent, acts that imply consent, and mere acquiescence—

three distinct modes of action that do not carry the same normative weight nor warrant

equivalent attributions of intention.31 Perhaps this defect is what led John Rawls to say that

the commonwealth by acquisition supports a “purely notional” or “hypothetical” reading of

Hobbes’s social contract.32 But Rawls’s conclusion is very far from both the spirit and the

letter of Hobbes’s corpus. Even if Rawls is right to think that “the hypothetical

interpretation” could suffice for Hobbes’s purpose, the political covenant in Hobbes is always

actual, never merely hypothetical. The theory of voluntariness as mere intentionality as well

as the (admittedly undertheorized) account of attributable consent only make sense if

Hobbes truly meant to ascribe actual consent to subjects living under a commonwealth,

31 For a persuasive argument for these distinctions and their normative implications, see Simmons 1979,
pp. 88-89.
32 “The Social Contract, interpreted purely hypothetically, enables Hobbes to make his argument. For his
purpose, the hypothetical interpretation does seem to suffice… On this interpretation, Hobbes is trying to urge
us into accepting an existing effective Sovereign” (Rawls 2007 [1983], p. 34). See also op. cit., p. 91, for the
claim that commonwealths by acquisition lend additional support to a “purely notional” reading of Hobbesian
contractarianism.

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whether it came about by institution or acquisition. Because only physical interference can

vitiate Hobbesian voluntariness, the vanquished nevertheless remains “free” in consenting

to the conqueror’s authority. No other case more perfectly illustrates Hobbes’s provocative

paradox that “Fear and liberty are consistent” (L XXI.3).

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CHAPTER 3. LEVIATHAN’S PERSONALITY

I explained in Chapter 2 how Hobbes’s theory of political incorporation is meant to

solve the fundamental problem of assurance in the state of nature. His argument is, in the

first place, a justification of the existence of states on two distinct but related grounds: (i) the

prudential rationality of anyone who truly understands the dim prospects of life in the state

of nature, (ii) and the need for a shared moral understanding in terms of which to adjudicate

competing moral claims (including disputes over justice and property, over “mine and

thine”). But Hobbes’s is also an argument about the right to perform as a state—a right

which, as we have seen, depends on the consent of subjects and the corresponding transfer

of the right each has in the state of nature to pass moral judgment on a subjective basis and

act freely on it. The state has the right to back its commands with the (threat of the) use of

force because subjects have authorized it to do as much. People authorize a sovereign for a

clear purpose—solving the problem of assurance and providing for safety, peace, and

“commodious living” (L XIII.14). In this Chapter, I delve into the details of how the state

ought to be constituted in order to fulfill the purpose for which it is authorized. For Hobbes,

the first and foremost condition is that the sovereign has to receive from subjects blanket

and irrevocable authorization of all its future commands. There is, in other words, only one

kind of sovereign that can solve the problem of assurance, hence only one that it would be

rational for anyone to authorize: an absolute sovereign.

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Absolutism is the most salient institutional attribute of every legitimate sovereign; it

is, as we shall see, both a presupposition of the covenant that authorizes it and a necessary

condition for it to be reliably effective (or so Hobbes believes). While sovereigns might differ

in their historical origins (which may lie in acquisition or institution), every mode of erecting

a “common power” rests on the same normative foundation of consent and issues in the same

kind of political authority: a single, indivisible, and absolute sovereign. Hobbes believes that

if one properly understands the need for a single and indivisible sovereign, absolutism

follows as a matter of course.

Hobbes’s absolutism is premised on one of the most original and philosophically rich

dimensions of his thought: the theory of personation. In section 3.1, I offer a detailed

reconstruction of the Hobbesian theory of persons which brings to light the various ways in

which the state is a sui generis entity. I build on recent scholarship to offer an exhaustive

typology of Hobbesian persons. It is critical to understand the details of the theory of

personation in order to grasp Hobbes’s understanding of group agency, which in turn

explains his conception of the state or commonwealth. In section 3.2 I explain how the

theory of personation leads Hobbes to the conclusion that there can only be one sovereign

for any given people (and vice versa).

Hobbes’s emphasis on the “unity of the representer”—what I call the univocality

condition—leads to a serious difficulty for his account of groups agents who operate on

majority rule. The problem is that such groups cannot by themselves be reliably rational;

they may have a single voice (the voice of the majority), but this voice will lack the coherence

necessary to justify ascriptions of group agency. As I explain in section 3.3, this means that

Hobbes’s theory of group agency must be rejected, as only groups personated by a natural

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person—groups with dictatorial decision-making procedures—seem to be reliably rational.

Setting this difficulty aside, I then explain how the univocality condition leads Hobbes to

reject the ancient idea of the mixed constitution (section 3.4). Because sovereignty cannot

be divided, it must therefore be absolute. The crucial implication of Hobbesian absolutism

is the application of the volenti non fit iniuria principle to the sovereign-subject relation:

sovereigns cannot commit injustice because everything they do bears the mark of each

subject’s authorization by consent. Hobbes is here drawing on the theory of personation

once again and its closely related account of the chain of attributions of responsibility for

group agency: what a sovereign does is literally done by the people, and the consequences of

the people’s acts must ultimately be “owned” by the multitude, that is, by each subject

individually. This analysis shows why consent is so important for Hobbes: the sovereign

cannot commit injustice against subject for the same reason that there are no self-inflicted

wrongs (section 3.5). Consent is what renders sovereigns immune from any imputation of

wrongdoing, though they may still be regarded as iniquitous. Hobbes’s admission that a

sovereign is always just but may nevertheless harm its subjects is his way of arguing that the

right to perform as a state is independent of the quality of the state’s performance.

In section 3.6 I consider the flip-side of absolute authority and argue that it does not

entail that subjects are under an equally absolute obligation of obedience to their sovereigns.

The reason is that Hobbes does not endorse the correlativity thesis: it is perfectly possible,

in his view, for someone to have a right that nobody has a duty to heed or to respect. The

state’s absolute right to command can coexist with relatively exceptional instances of

justifiable refusal on the subjects’ part.

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On my reconstruction, there are then two independently necessary and jointly

sufficient conditions of state legitimacy for Hobbes: authorization and effective protection.

The exceptions to the obligation of obedience highlight the fact that no sovereign can be

legitimate unless it is an effective protector, whereas the argument for absolutism entails

that no sovereign can have the right to perform as a state unless subjects have given their

authorization through consent (however weakly construed). In section 3.7, I defend the

necessity of consensual authorization for Hobbesian legitimacy against three common

objections: (i) that Hobbesian consent cannot have normative effects given his deterministic

materialism, (ii) that God’s legitimate rule by irresistible force does not require consent at

all, and (iii) that Hobbes endorsed the “mutual relation” thesis between protection and

obedience characteristic of de facto theorists of legitimacy.

3.1 The Theory of Personation

Recall that, for Hobbes, “to erect a common power” means “more than consent, or

concord; it is a real unity of them all, in one and the same person, made by covenant of every

man with every man” (L XVII.13, emphasis added; cf. section 2.2). The unity of which he

speaks, the one “will” achieved by the contractors, comes about through the unifying and

unified agency of the person of the sovereign.

Hobbes’s account of the unity of sovereignty is best understood through his theory of

personation and the political ontology it entails.1 Hobbes’s exposition of the theory of

1 Hobbes’s theory of personation is most systematically developed in Leviathan, though the key
elements of his view are already visible in both Elements of Law and De Cive. Reference to the latter works will

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personation begins with the definition of a person as “he whose words or actions are

considered either as his own, or as representing the words or actions of another man, or of any

other thing to whom they are attributed, whether truly or by fiction” (L XVI.1; cf. DH XV.1).

Hobbes’s definition embodies a firm commitment to a functional conception of personhood

directly opposed to the metaphysical idea that dominated scholastic thought, viz. Boethius’

persona est naturae rationalis individua substantia.2 This functional conception allowed

Hobbes to think about persons in terms of “the roles they can play,”3 instead of their

metaphysical make-up. For Hobbes, anything is in principle eligible to become a person

provided it can discharge the role or function that is constitutive of personhood.4 The role

in question, as the definition indicates, is that of being a spokesperson, or being able to act

and speak in someone’s name. To be a person is to be a representative, for “a person is the

same that an actor is, both on the stage and in common conversation; and to personate is to

act, or represent, himself or another” (L XVI.3; DC XV.1). Persons are they who can personate.

Hobbes’s functional conception of personhood led him to revise the traditional

distinction in medieval thought between a persona ficta and a persona vera sive naturalis.

be offered occasionally to indicate the continuity of Hobbes’s ideas about personation and incorporation
throughout his work, though I rely mostly on Leviathan in this section.
2 For Boethius’s definition, see his Liber de Persona et Duabus Naturis [c. 513 AD], Chapter 3. Aquinas
cites Boethius’ definition in Summa Theologica Ia.29.1 and argues for a more strictly Aristotelian (hence
hylomorphic) interpretation of its meaning: “In applying ‘persona’ to human beings, Aquinas emphasizes
corporeity more strongly than does Boethius. According to Aquinas, ‘persona’ in relation to human nature
refers to ‘this flesh, these bones, and this soul which are the sources [‘principia’] of man’s individuality; these
are indeed part of what is meant by a ‘human being.’ For Aquinas, ‘a human person’ is synonymous with
‘individual human being’, where ‘man’ or ‘human being’ is understood as being composed of soul (form) and
body (matter)” (Thiel 2011, p. 29).
3 Pettit 2008a, p. 55.
4 As Tukiainen rightly suggests, the “first move” of Hobbes’s functional theory of personhood “is to blur
the boundary between natural and artificial life” through his mechanistic materialism (1994, p. 49). In
Hobbes’s words: “For seeing life is but a motion of limbs, the beginning whereof is in some principal part within,
why may we not say that all automata (engines that move themselves by springs and wheels as doth a watch)
have an artificial life? For what is the heart, but a spring; and the nerves, but so many strings; and the joints,
but so many wheels, giving motion to the whole body, such as was intended by the artificer?” (L Intro.1).

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The distinction dates back to Pope Innocent IV’s (1234-1254) efforts to account for the

theological status of universities, monasteries, guilds, and corporate entities in general. In

his 1246 Romana Ecclesia decretal, Pope Innocent admitted that universitates were like

personae naturales insofar as the law treated them as if they had something akin to a will:

they could all be said intelligibly to own things, to be able to sue others, or be sued in turn.

They could even do things coherently, as if following an intentional plan, thus exhibiting a

form of collective rationality in the way they conducted their affairs. But universitates

remained radically different form Boethius’s naturae rationalis individuae substantiae.

Corporations were not individual substances in the Aristotelian sense and could not, a

fortiori, have a nature, much less a rational one. They were persons in a different, limited

sense. Though Pope Innocent’s doctrine was consistent with the treatment of universitates

as bearers of legal rights, entitlements, and property, even as objects of praise, blame or

criticism, it was not possible—and this was the crux of Innocent’s concern—to

excommunicate them.5 Only natural persons (and, it would eventually be admitted, all

natural persons) were endowed with a soul, hence eligible for both salvation and exclusion

therefrom. For theological purposes, universitates were less than real persons: they were

personae fictae, persons by fiction only, in contrast with you and I, personae verae.

Though lesser by comparison with natural persons, the personae fictae of Innocent’s

decretal retained most of the key legal attributes of personhood. 6 This was consistent with

5 Pope Innocent’s Romana Ecclesia explicitly states that “In universitatem vel collegium proferri
excommunicationis sententiam penitus prohibemus…” (cited in Eschmann 1946, p. 10).
6 “What is an universitas? The mediaeval term means a social unit, in the broadest sense of the word.
This unit the jurists require to be approved, at least tacitly, by the competent superior authority which, by
granting to it the privilegium universitatis, makes it an universitas, juridically speaking. This privilege consists
in the right (ius) to have a common seal, a common treasury, to appoint a procurator or syndicus through whom

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the tradition of Roman law, which had always allowed for entities such as collegia and

municipia to be “treated as legal persons, although they were not described as such.”7 But it

was only after Innocent’s account of corporations as personae fictae that a full-blown theory

of corporate personhood became possible at the hands of the 13th century Roman law

Commentators.8 Setting aside Pope Innocent’s interest in the (im)possibility of

excommunicating universitates, the Commentators emphasized the legal reality of

corporations rather than their lesser theological status.

The critical insight of the Commentators was that a corporate entity could be

understood in two ways: “both as a congregation of men, and as an abstract entity distinct

from its members.”9 The point was that personae fictae were legally every bit as real as

natural persons, and that their juridical existence was categorically distinct from the

existence of their individual members: the universitates were more than the aggregation of

the natural persons that made them up. Consequently, the words and deeds of a corporation

could be attributed to its members qua universi, as a unity or whole, but not qua singuli, or

as a mere aggregation of individuals. The property owned by the Order of St. Francis, for

example, is not owned by its members omnes singuli, but by the order as such, that is, by its

membership as a single entity; moreover, the property is owned by the Order independently

of how its membership changes over time. While the Order of St. Francis could not exist

to perform property transactions and to bring or defend lawsuits, the right moreover to make corporate
resolutions with the majority of votes, and so on” (Eschmann 1946, p. 8).
7 du Plessis 2010 [1994], p. 85. Though the Romans also developed a theory of partnerships as part of
the law of obligations, societates were never treated as free-standing legal persons. They were only
aggregations of rights and duties that could be thoroughly reduced to the individual rights and duties of the
partners.
8 “Overt use of the term, persona, to denote a legal person was an invention of the thirteenth-century
jurists” (Canning 1983, p. 23).
9 Ibid.

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without the individual Franciscans who make it up at any given point in time, its freestanding

juridical personality is independent of the identity of said members. If “person” is, to borrow

Locke’s definition, “a forensic term appropriating actions and their merit,”10 the

Commentator’s conception of corporate personhood made it possible to “appropriate” the

actions for personae fictae in the strictest sense, that is, as truly the actions of the corporation,

not as the actions of its individually members.11

Some natural law theorists translated Pope Innocent’s thesis that personae fictae

were theologically “less real” than natural persons into the further claim that even in the law,

the personhood of universitates was no more than a metaphorical ascription.12 Hobbes on

the other hand, firmly believed in, and contributed greatly to developing, the Commentator’s

claim that the law could treat group agents as persons because they are really so. As a result,

and in keeping with his functional definition of persons, Hobbes redrew the contrast

between personae fictae and naturales. What defines a persona ficta is its artificiality, the fact

it must be sustained or kept in existence by an artificer. A persona ficta is the sort of person

who can only act in the world through the agency of an artifex or “artificial person”: “When

they [the words or actions of a person] are considered his own, then is he called a natural

person; and when they are considered as representing the words and actions of another, then

is he a feigned or artificial person” (L XVI.2). Hobbes’s “artificial”/”natural” distinction

10 Locke 1996 [1689]), Book II, Chapter XXVII, §26 (p. 148).
11 In modern philosophical terms, the Commentator’s insight was that corporations supervene on their
individual members. The corporation is ontologically derivative, as it cannot exist without members; but it is
multiply realizable, as it preserves its identity qua corporation across variations in the composition of its
membership.
12 Suárez, for instance, remained committed to the Boethian, metaphysical conception of personhood and
thus followed Aquinas in opposing personae veare to personae fictae (Thiel 2011, p. 29). In Suárez’s view,
corporations and other group agents could only be what Pettit calls “expressive” fictions (2014, p. 1643).

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reflects the functional difference between a person-as-spokesperson for him- or herself and

a person-as-spokesperson for another. The “artificial” or “feigned” person for Hobbes is just

someone who represents another. The entity represented intervenes in the social world by

“coopting and channeling the voice of its representer.”13

The Hobbesian idea of an artificial person coupled with the overall functional

conception of personhood make it possible for Hobbes to explain how a single individual or

entity can “bear” numerous persons (cf. L XVI.3). Because personation is a matter of role-

play, one and the same individual can “bear” as many different persons as roles she can

occupy. An actor on stage bears the person of a character from a play and so, qua actor, is an

artificial person representing another (i.e. the character). But off stage, the actor acts and

speaks in his own name, as a natural person. If in another context the actor delivers a speech

as president of the actors’ guild, then he is yet again an artificial person, but personating the

guild rather than the character from the play: during the speech, the guild takes over the

actor’s voice, so to speak, in order to declare what it thinks, intends, promises, and so on.

Indeed, “Not only can a single man bear the person of a single man, but one man can also

bear many, and many, one” (DH XV.3). Hobbes’s idea of artificial personality proves to be a

powerful theoretical device for understanding the complex web of social roles and

interactions structured by convention.

Having defined artificial persons in general, Hobbes suggest an important and subtle

distinction within the class of artificial persons: “Of persons artificial, some have their words

13 Pettit 2014, p. 1648. Contrary to Skinner’s early interpretation, it is not Hobbes’s view that “the
artificial person must be the person represented” (1999, pp. 11, 22.). Skinner later corrected this claim (2005,
p. 178n) to accurately reflect Hobbes’s view, following the objections raised by Runciman (2000) against his
earlier interpretation.

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and actions owned by those whom they represent, and he that owneth his words and actions

is the AUTHOR, in which case the actor acteth by authority” (L XVI.4). Though Hobbes says

nothing explicitly about the contrast class he has in mind, it is fair to infer that there must be

artificial persons whose actions are not “owned” by “those whom they represent.” It appears

that Hobbes wants to distinguish the relevant classes of artificial persons by reference to the

entities they represent and the mode of authorization in virtue of which they can come to

personate them.

To better understand what Hobbes has in mind, consider the following three cases:

Case A. An “overseer” who represents or personates a bridge (cf. L XVI.9). The

overseer is obviously an artificial person because whatever she does qua overseer is done

on behalf of the bridge. However, the overseer’s actions cannot intelligibly be “owned” by

the bridge as such, because bridges and other “things inanimate cannot be authors” of any

action whatsoever. It is characteristic of “inanimate things” that they can only “act” when

personated by someone else.

Case B. “[C]hildren, fools, and madmen” who “may be personated by guardians or

curators” (L XVI.10). Children, fools, and madmen can in principle self-personate, but for the

time being they “have no use of reason.” Consequently, before “they shall recover the use of

reason,” they are incapable of explicitly (and validly) authorizing someone to act on their

behalf. Yet they can act through the artificial person of a guardian or curator.

Case C. A businesswoman who gives her friend the power to transact in her name.

The businesswoman explicitly authorizes the friend as her agent, empowering the friend to

make valid contractual agreements for which she will be ultimately responsible. While

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acting within his mandate of agency, the friend is an artificial person representing someone

other than himself, namely the businesswoman.

In each of these cases there is an artificial person personating someone or something

other than him or herself: the overseer personates the bridge, the guardian personates the

child, and the agent personates the businesswoman. But there are important differences

between these instances of relations of personation. As regards Case A, the first thing to

notice is that the bridge personated by the overseer is inherently incapable of acting in its

own name. Bridges, and inanimate things in general, are in principle incapable of self-

personation; they are not the sorts of entities in the world that can be held accountable for

anything, not even for what is done in their name. They can only act by appropriating their

personator’s agency. Since they “cannot be authors” by themselves, a fortiori they cannot

expressly “give authority to their actors” or representatives (L XVI.9). The overseer’s

normative standing as representative of the bridge must therefore originate in someone

other than the bridge itself; it must come, Hobbes suggests, from “those that are owners or

governors” of the bridge (ibid.; emphasis added). Overseers are perfect examples of artificial

persons whose actions, albeit authorized, are not “owned” or “authored” by the entity

personated because that entity cannot possibly “own” up to the consequences of actions. The

bridge’s inherent inability to self-personate explains both why the overseer’s actions cannot

be “owned” by the bridge and why the overseer’s authority cannot come from the bridge

itself. The overseer must receive statutory authorization, that is, it must be authorized by a

third party according to some rule that settles who are the “owners or governors” of the

bridge. This is why bridges and “such things cannot be personated before there be some

state of civil government” (ibid.).

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Case C, by contrast, is an instance of personation of someone who is evidently capable

of self-personating. The businesswoman can speak and act in her own name, which is why

the friend’s authority to act as her agent can only come from the businesswoman herself.

The express authorization given by the businesswoman warrants the attribution of the

agent’s actions to her (provided those actions fall within the scope of the original mandate).

The businesswoman is properly said to be the “author” of the transactions done in her name

and by virtue of the mandate she confers upon her friend; it is she who must answer for, and

will benefit from, the obligations incurred by her agent. The businesswoman inherits, so to

speak, all the obligations and entitlements that result from the agent’s transactions.

Case B resembles Case A but differs in one critical respect: while children, fools, and

madmen are temporarily incapable of self-personation, they can in principle recover the use

of reason and act in their own names (at least according to Hobbes). While legally

incompetent, they can only be personated by the artificial person of a guardian whom they

cannot expressly authorize at that time. Guardians must be authorized by statute, just like

the bridge overseer. And for that reason, guardianship has “no place but in a state civil” (L

XVI.10). The crucial difference vis-à-vis inanimate objects—and herein lies the resemblance

with Case C—is that children, fools, and madmen are the sorts of beings who can in principle

own up to actions upon reaching or recovering the use of reason, at which point they would

be deemed to be the “authors” of their guardian’s deeds. While a bridge’s inability to self-

personate is intrinsic, this is not the case with children, fools, and madmen.14

14 Again: at least not for Hobbes, for whom neither folly nor madness is incurable.

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These cases present, then, two modes of authorization: statutory (Cases A and C) and

express (Case B). These modes of authorization in turn correspond to two sorts of

representation: a personator represents “truly” when he has been expressly authorized and

“by fiction” when he has been authorized by statute (L XVI.1). The fiction consists in the fact

that when A authorizes B to act in C’s name, we conduct ourselves as if C had authorized B to

act in its name. In this context, then, “by fiction” roughly means to “by convention.”15 Cases

A through C also suggest that there are three kinds of personatees: those which cannot as a

matter of principle self-personate (inanimate objects), those temporarily unable to self-

personate (children, fools, and madmen), and those capable of self-personation (the

businesswoman). To complicate matters further, Hobbes adds that persons are not only

those who personate or represent, but also they who are personated or represented: “a

person… is he that is represented, as often as he is represented” (L XLII.3). It follows that

the three kinds of personatees we have identified are so make kinds of persons in their own

right.

Hobbes’s recognition that an entity can be a person qua personated or represented is

his way of affirming the Commentator’s thesis of the reality of group agents. A group agent

and “[e]ven an inanimate thing can be a person, that is, it can have possessions and other

goods, and can act in law” (DH XV.4) precisely because personality extends to personatees

and not merely to personators. So let us see what sort of person each type of personatee

must be. By Hobbes’s own definition, those who are personated but are also capable of self-

15 It follows from the two distinct modes of authorization that Skinner’s claim that “anyone who
authorizes an action can be identified as its author” is incorrect (1999, p. 8). In cases of statutory authorization,
he who authorizes (i.e. the law or the state) is obviously not the author of the actions in question; in fact, in
cases of personation of inanimate objects, nobody can be said to be the “author” of the personator’s deeds in
the relevant sense.

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personation are simply natural persons, as is the businesswoman in Case C. Inanimate

objects (Case A) are the very opposite: they are in principle incapable of self-personation.

Because inanimate objects cannot possibly act in their own name, their status as persons

depends on the availability of an artificial person who can represent them. The bridge-as-

person is a “parasitic, pretend entity” without independent existence, as it depends on the

overseer to retain its agential status.16 This is why Hobbes refers to them as persons “by

fiction,” for inanimate objects only count as persons while they are being personated by

another: their very existence as persons depends on the availability of an artificial person (a

personator) who can represent them. Absent such an artificial person, the person by fiction

no longer exists as a person at all.17

As for children, fools, and madmen, they seem to comprise an intermediate category

of persons, treated as such “by fiction” only during their temporary legally incompetency.

Because they can always recover the ability to self-personate, it makes more sense to think

to them as persons by analogy, even though they are also represented “by fiction” during

their legal incompetency. Persons by analogy can only be personated by statutory

authorization; hence, they are in every case represented “by fiction.” My suggestion, then,

16 Pettit 2014, p. 1648.

17 Runciman 2000, pp. 271-273. The analysis of persons “by fiction” shows that it is decidedly not
Hobbes’s view that “A person is anyone capable of being represented” (Skinner 1999, p. 17n93). The fact that
a bridge can be represented does not make it a person; what makes it so is the existence of an artificial person
who actually personates the bridge. It is in the nature of persons by fiction that their personhood is not inherent
to them qua capable of being represented, but instead depends on their being actually represented. Skinner’s
reading does not fit with the emphasis that Hobbes’s definition of persons places on the fact, not the possibility,
of representation (cf. L XVI.1, DH XV.1). Runciman is therefore right to say that as regards the capacity to be
represented, “where unrealized, the thing in question is not a person” (2000, p. 269).
Hobbes’s concept of persons by fiction in this way reproduces the medieval notion that personae fictae
are “less” real than natural persons, but without the traditional metaphysical baggage. The “lesser” reality of
corporations is not due to their theological inferiority in the hierarchy of being (as Pope Innocent and especially
Aquinas believed). The idea can be fully spelled out in strictly function terms: personae fictae strictu sensu are
“less real” than natural persons because they are in principle (not just temporarily) incapable of performing
the role of self-personation.

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amounts to this: though every person by fiction is represented by fiction, not every case of

representation by fiction is an instance in which a person by fiction is being represented.

Representation by fiction is opposed to “true” representation; personhood by fiction is

opposed to both natural personhood and personhood by analogy. The two uses of “by

fiction” are distinct and should not be confused.18

Hobbes’s examples of persons by fiction are not limited to inanimate objects such as

bridges. He also explicitly includes churches and hospitals (L XVI.9) as well as idols and false

gods (L XVI.11). It follows that within the class of persons by fiction, we should distinguish

three specific types: mere inanimate things (bridged), human groups (churches and

hospitals), and imaginary entities (idols and false gods). I have already explained the nature

of inanimate things such as bridges, which have real existence but can only be persons so

long as they are personated because they are in principle incapable of self-personation. As

for imaginary entities, the salient fact is that they do not actually exist. False gods, idols, and

even literary characters are “mere figment[s] of the brain” (ibid.); it is trivially true that they

can only intervene in the world by “coopting” an artificial person or personator. Because

they do not exist, they are not only persons by fiction but also fictional or fictitious persons.19

18 Runciman (2000, p. 269) treats children, fools, and madmen as persons by fiction on a par with bridges.
While this is strictly speaking correct for as long as children, fools, and madmen lack the use of reason, it is best
to categorize them as persons by analogy (my term, not Hobbes’s) to adequately reflect Hobbes’s belief that
they could at any time recover the capacity to self-personate. This is not an irrelevant fact; clearly a personator
for a bridge will never worry that the bridge will one day take him or her to task for the actions undertaken in
its name, whereas this is obviously an important consideration for any guardian of a temporarily incapacitated
human being. The possibility that children, fools, and madmen may personate themselves in the future puts
them in a category of their own, worth distinguishing from that of persons by fiction.
19 Skinner (1999) is right to highlight the distinctiveness of fictional persons. However, he makes the
significant mistake of assuming that Hobbes’s “by fiction” is in every instance synonymous with “fictional” or
“fictitious” (p. 15). This appears to be one of the main reasons why, in the same article, he categorized the state
as an artificial person rather than a person by fiction, as the state is obviously not fictional or fictitious. Though
Runciman’s arguments conclusively show that the state is a person by fiction all right, he does not address the
equivocation at the root of Skinner’s early view.

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The third group of persons by fiction is comprised of group agents (the universitates

of Pope Innocent’s decretal). Unlike fictitious persons, groups obviously do exist; and unlike

bridges, they are comprised of individual human beings or natural persons who can

individually be held to account for the actions of the groups to which they belong. The

problem that arises for group agents in particular is how they can possibly exhibit the

volitional unity, the kind of rational coherence, that justifies treating them as unitary agents.

Wherein lies the unity and coherence of a group agent? Hobbes has a characteristically clear

answer: “A multitude of men are made one person, when they are by one man, or one person,

represented so that it be done with the consent of every one of that multitude in particular.

For it is the unity of the representer, not the unity of the represented, that maketh the person

one. And it is the representer that beareth the person, and but one person, and unity cannot

Skinner’s argument for equating “by fiction” with “fictitious” or “fictional” is the following: because
Hobbes describes literary characters as fictitious persons (“faciem fictitiam Agamemnonis,” DH XV.1), the class
of persons represented “by fiction” must correspond to fictional or fictitious entities. But DH XV as a whole
does not warrant the equation of fictitius with fictional or fictitious, as the same Latin word is elsewhere used
by Hobbes in the more general sense of “artificial.” In DH XV.4 Hobbes writes: “Hujusmodi autem fictionum quis
sit usus in civitate, (est autem maximus), dicemos in sectione tertia, quae est De Cive,” where “fictionum” (fictio)
clearly refers to a type of which the state is the paradigmatic token. In Leviathan, the state is often characterized
as the human artifice par excellence (artifex, homo artificialis in the Latin edition). This strongly suggests that
the fictionum of DH XV.4, and hence fictio more generally in De Homine, does not unequivocally mean “fictional”
or “fictitious.” Whereas Skinner’s reading entails an equivocation in Hobbes’s usage of fictio, mine does not
because Agamemnon and the state are both persons “by fiction” qua human artifacts, though only the former
is also fictitious or fictional. Indeed, “The difference between Agamemnon and the state is not that one is a
person by fiction and the other one is not, but rather that one is a person by fiction whose attributed actions
are backed up by the actions of real persons, and the other is not” (Runciman 2000, pp. 275-276).
It might seem that equating fictionum with “by fiction” by appeal to Leviathan’s artificialis collapses the
distinction between artificial persons and persons by fiction, which was the whole point of the Skinner-
Runciman debate. In fact, it does not. The apparent difficulty results from Hobbes’s ambiguous use of the
English “artificial.” In some cases, it is equivalent to “conventional,” and opposed to “natural,” and the Latin
artifex/artificialis is consistently used in this way (e.g., “Itaque quemadmodum ad Civitatis constitutionem
necessarius erat Artificialis homo, ita etiam ad conservationem Civitatis necessaria erat Artificialis vita, sine qua
post aetatem unam, moriente Monarcha, Civitas omnis interiret,” L XIX.14). However, in the specific context of
the theory of personation, when a person is described as “artificial,” this simply means that the person in
question represents another as opposed to representing him or herself. It is of course true that the state is
artificial in the former sense but, as we shall see, not in the latter, more technical sense. Thus, Berns is right to
say that the state is “artificial” qua legal creation (1987 [1963], pp. 404, 413), but Skinner (1999, p. 22) and
Steinberger (2008, pp. 598-600) err in saying that it is “purely artificial” or “artificial,” respectively, in the
narrower context of the theory of personation.

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otherwise be understood in multitude” (L XVI.13). Groups acquire agential unity in virtue of

being personated by one and the same artificial person, by speaking with a single (coherent)

voice. Absent a single personator capable of ensuring that the group will display the required

volitional unity and coherence, a collection of human individuals cannot possibly acquire the

status of a person.

Hobbes’s conception of group agency further develops the Commentators’ treatment

of corporations as abstract entities that, legally speaking, exist over and above the members

who comprise them, though their status as persons depends entirely on the unity of their

representer. The members, qua singuli, are not a group agent at all. What Hobbes is now

able to explain is what gives them the unity that they lack when viewed as a mere plurality

of individuals—namely, having a single spokesperson, a single personator, whose voice

guarantees that the members exhibit volitional unity and coherence qua universi. A

collection of friars can only become the Order of St. Francis through a single artificial person

who can personate them all as a group, or so Hobbes tells us.

Let us pause for a moment to summarize the structure of Hobbes’s account of persons

with an example. Imagine an actor who decides to buy a house. When he signs the contract

undertaking the commitment to pay the full value of the house to its previous owner, the

actor acts in his own name. He personates himself and owns (i.e. is accountable for) his own

actions. At the time of signing the contract, the actor is thus bearing his natural person. But

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often the actor does things for which he cannot be held responsible or accountable, things

done in the name of another. In every such instance, the actor is an artificial person. As his

friend’s business agent, the actor represents another natural person who has expressly

authorized his representation. Because of the express authorization, the actor represents

his friend “truly” and all the deals he conducts in his friend’s name are owned by the friend

(provided the actor adheres to the mandate of representation). Our actor also happens to be

the legal guardian of his young niece, an orphan who inherited a large fortune. The niece

cannot expressly authorize her uncle to manage her affairs, since she is incapable of acting

in her own name for the time being. The niece is a person by analogy, not (yet) a natural

person. The actor’s standing to act as his niece’s guardian comes from statute, since the niece

herself cannot expressly authorize her uncle to represent her. Because the young niece

cannot really “own” any actions quite yet (hence the need for statutory authorization,

express authorization being out of the question), the actor represents her “by fiction” rather

than truly.

Our actor also happens to be the appointed theatre commissioner and it is his

responsibility to see to the care of the building. In raising funds for the theater, our actor-

commissioner is also an artificial person, this time representing an inanimate object. Like

the young niece, the theatre is incapable of expressly authorizing its own commissioner;

therefore, our actor’s authority must have also originated in statute. Because the authority

to represent the theatre comes from a source other than the theatre itself, the mode of

representation is, again, “by fiction.” There is, however, an important difference with the

niece’s case in that the theatre’s inability to self-personate is intrinsic, not temporary.

Because the theatre cannot at present, nor will ever be able to, “own” any action whatsoever,

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it is only a person “by fiction” rather than a person by analogy. Our actor’s role as president

of the actors’ guild as well as the dramatis personae he plays on stage are just like the role of

commissioner, only that the persons by fiction represented are a group agent and fictional

entities, respectively. Except for the covenant of political incorporation (the subject of the

following section), our example covers every kind of Hobbesian person:

PERSONS

...because ...because
personating/ personated/
representing represented

NATURAL ARTIFICIAL NATURAL BY ANALOGY BY FICTION

Temporatily (not in
Act and speak in their Act and speak in the Actually self- In principle incapable
principle) unable to
own name. name of another. personating of self-personation
self-personate

Criterion: Inanimate Objects

Mode of Authorization (e.g., bridges)
and Representation

Express Authorization/ Statutory Authorization/ Group Agents

Represents "Truly" Represents "By Fiction"
Actions of personator Actions of personator not Political Authorizaiton (e.g., churches,
owned by natural person burlama hopsitals, and other
represented. by person represented universitates)

Fictional Persons
Permanent
Person represented is by
(e.g., literary characters
fiction and "false gods and
idols")

Remedial/Temporary
Person represented is a
person by analogy

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3.2 Political Persons

Hobbes’s elaborate theory of personation is of the greatest political consequence for

three reasons. First, because it develops a robust account of one of the most important things

human beings can voluntarily do in society—namely, authorize others to act on their behalf,

individually as well as collectively. Second, because it decouples the capacity to be (treated

as) a person from the capacity to own up to one’s actions, as exemplified by the class of

persons by fiction. Though they are not in themselves responsible entities, persons by fiction

can nonetheless be personated; they can be persons before the law, with whom individual

human beings can rationally interact.20 Finally, the theory of personation enables Hobbes to

understand with utmost precision the ontological status of all the persons involved in, and

resulting from, the act of political incorporation. By understanding the logic of authorization

and personation, we can make sense of the significance of those acts of consent whereby we

alienate our power to act and speak in our own names as individuals. Whenever we

individually consent to another’s authority to do things on our behalf, we make the

representer into an artificial person capable of personating us collectively while each of us

individually retains ownership of, hence responsibility for, the acts done in our name by the

representer.

This is exactly what the covenant of political incorporation does. When people

consent to having a sovereign serve as the “common power” among them, they authorize that

20 Another way to put Hobbes’s suggestion is that whereas all objects that are appropriate targets of
Strawsian reactive attitudes are persons, not all persons are appropriate objects of reactive attitudes (Strawson
1974, esp. pp. 6-8). We cannot (sincerely) resent persons by fictions such as inanimate objects or literary
characters, but we may treat them as persons as long as they are represented by an artificial person. Things
are only slightly different in the case of group agents, which one may sincerely resent but only as proxies for
one’s intended targets of resentment—the natural persons who make up the group.

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sovereign. The theory of consent we discussed in Chapter 2.3 explains why such an act of

authorization is normatively valid even when extracted by fear and threats, but it is only

through the theory of personation that we can grasp its true significance and striking

implications. To authorize a sovereign just means that the sovereign becomes an artificial

person acting in all our names, “For he is called the author, that hath declared himself

responsible for the action done by another according to his will” (DH XV.2). We are the authors

of the sovereign’s deeds because he personates us, and he personates us because we

consented to his authority; we have empowered the sovereign to exercise the individual

rights of nature that each of us transferred away as a “free gift.” Personation (or

representation or authorization) works the magic of making A’s actions fully attributable to,

hence binding on, B: “when the actor maketh a covenant by authority, he bindeth thereby the

author, no less than if he had made it himself” (L XVI.5). The covenant of political

incorporation is like a sacrament, a sort of performative utterance that makes true what it

represents: the creation of the person by fiction of a commonwealth.

Let us now revisit the process of political incorporation afresh, this time from the

point of view of Hobbes’s theory of personation. The political covenant that authorizes a

sovereign involves (i) the transfer of my right to all things in the state of nature (as a “free

gift”), (ii) a corresponding renunciation of the original right to act on my own private

judgment, and (iii) a commitment to guide my actions by the common evaluative standards

set by the sovereign’s commands, that is, by the civil laws. The covenant therefore amounts

to an alienation of one dimension of my agential freedom, as I am no longer to act on my own

judgment. Instead, I must henceforth act on the sovereign’s judgment about what is right

and wrong. Upon becoming a subject of the sovereign, I must act on his judgment as if it

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were my own—which is just to say that the sovereign makes evaluative judgments in my

name. As the theory of personation now enables us to grasp, the reason the sovereign’s

judgments are binding on me is that the act of authorization has made the sovereign an

artificial person whose judgments I personally own. Because I have authorized the sovereign

to judge in my stead, I am the author of the sovereign’s deeds and pronouncements.

Of course, all of this is true of me as much as it is true of everyone else who enters the

political covenant of incorporation. The sovereign therefore is the artificial person

authorized by all of us as individual members of the political community (qua singuli) and

each and every one of us is author of the sovereign’s judgments and actions. This aggregation

of persons who individually authorize the sovereign but have not yet incorporated into a

state is what Hobbes calls a “multitude” or multitudo: “By multitude, because it is a collective

word, we understand more than one: so as a multitude of men is the same with many men.

The same word, because it is of the singular number, signifies one thing; namely, one

multitude. But in neither sense can a multitude be understood to have one will given to it by

nature, but to either a several; and therefore neither is any one action whatsoever to be

attributed to it” (DCv VI.1n; cf. EL XX.2, L XVI.13). The term “multitude,” then, must not be

taken to refer to a group properly speaking, for a mere collection of individuals does not

exhibit the volitional unity and coherence of a collective agent. In terms of the theory of

personation, a multitude is capable of becoming a person if and so long as it is personated,

but it is not by itself a person.21

21 See p.100n17.

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We have already seen that, for Hobbes, any collection of individuals can become an

actual group agent as soon as it has a single spokesperson, a single artificial person to

personate it as a group, “For it is the unity of the representer, not the unity of the represented,

that maketh the person one” (L XVI.13). This is exactly what the sovereign does: he alone

“bears” the person of all the subjects qua universi, as a group. The name Hobbes gives to the

group of all subjects considered as a single agent is “people” or populus: “But if the multitude

do contract one with another, that the will of one man, or the agreeing wills of the major part

of them, shall be received for the will of all; then it becomes one person… And it is oftener

called the people, than the multitude” (DCv VI.1n). Like any other group agent, the people is

a person by fiction: it is a real person, but one that can only act and speak through the deeds

and words of a (single) personator—the artificial person of the sovereign.22 Without a

sovereign whose voice it can coopt, there can be no people.23

22 In Elements of Law, Hobbes explicitly says: “For a body politic, as it is a fictitious body, so are the
faculties and will thereof fictitious also” (EL XXI.4). This is not to be confused with what I have called fictitious
or fictional persons, such as false gods, idols, and literary characters. Here Hobbes is using the word “fictitious”
as equivalent to “by fiction,” with the idea of artifice or human contrivance in mind. See p. 101n19.
23 According to Tuck, Hobbes’s account of multitudes in Elements of Law and De Cive “lent credence” to
“the idea repeatedly put forward in the English Civil War, that ‘the People’ had the collective right to limit their
sovereign,” which is allegedly the reason why Hobbes reworked the theory of personation in Leviathan (1989,
pp. 66-67). Indeed, Hobbes was keen on rejecting the populist theory of sovereignty advanced by the
parliamentarians during the English Civil War, but I fail to see what in his early texts could possibly have given
“credence” to that theory.
The thesis we find in Leviathan—that the people and the multitude are ontologically and normatively
distinct—is already unambiguously stated in Elements of Law: “the word people had a double signification. In
one sense it signifieth only a number of men, distinguished by the place of their habitation… In another sense,
it signifieth a person civil… whereupon they that do not distinguish between these two significations, do usually
attribute such rights to a dissolved multitude, as belong only to the people virtually contained in the body of
the commonwealth or sovereignty… In which sense they say the people rebelleth, or the people demandeth,
when it is no more than a dissolved multitude” (EL XXI.11). Later, in De Cive, Hobbes reaffirms his conviction
that ‘the People’, while not being personated, is just a multitude, and that “a multitude cannot promise, contract,
acquire right, convey right, act, have, possess, and the like” (DCv VI.1n), which is why “it is a great hindrance to
civil government, especially monarchical, that men distinguish not enough between a people [populum] and a
multitude [multitudinem]” (DCv XII.8). Contrary to Tuck’s suggestion that Leviathan presents a somewhat
revised version of Hobbes’s political ontology—a point he has made again recently (2015, pp. 107-108)—, it
seems to me that it merely develops and refines the same fundamental political commitments of his earlier
works. On this, and most other subjects, Hobbes’s corpus is remarkably consistent.

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So far, we have four distinct entities at play in the process of political incorporation:

the individual contractor (and subject-to-be), the sovereign, the multitude, and the people.

The sovereign is an artificial person authorized by every individual contractor, that is,

authorized by the multitude. But once the sovereign is properly authorized, he personates

the multitude as a single, unitary agent—that is, as a people. Crucially, the identity of the

people remains the same even as the composition of the multitude changes over time.24 The

act of incorporation thus brings into existence the person by fiction of the people which, for

Hobbes, is synonymous with “state,” “commonwealth,” or civitas (L Intro.1, L II.XVII.13; cf.

“…the people virtually contained in the body of the commonwealth…,” EL XXI.11).25

There is a subtle but very important difference between the sovereign-people (or –

state or –commonwealth) and the sovereign-multitude relation. While the sovereign acts in

the name of the people, its authority to do so does not come from the people as such; a

people—like any other person by fiction—is incapable of self-personation and cannot

therefore expressly authorize its representer. What is more, the people only begins to exist

after the act of authorization has taken place, so it cannot antecedently have authorized the

24 This is true of the people and even of unincorporated collective agents (the middle class, the working
class, etc.) because all supervenient entities are multiply realizable. It is therefore misleading to suggest that
“the unity of the multitude continually alters as its members born and die” (Skinner 2008, p. 346, emphasis
added). The unity of the multitude (i.e. the identity of the people) is preserved across variations in the
composition of its subvenient base.
25 Hobbes was by no means the first to equate the people with the state or commonwealth. The 13 th and
14 century Roman Law Commentators had already theorized the populus liber as a territorial state (Canning
th

1983, p. 10). But it was only in the late 16th and early 17th centuries that “the term state began to be used with
increasing confidence to refer to a specific union or civil association, that of a universitas or community of
people living subject to the sovereign authority of a recognized monarch or ruling group” (Skinner 2008, p.
327). It is worth noting, however, that already in the 14th century Marsilius of Padua extended the
Commentator’s analysis of the populus liber as a corporation to the universitas civium in general. The
Monarchomach doctrine of popular sovereignty further contributed to the identification of the people with the
state (Skinner 2008, p. 337).
In addition to the terms “people,” “commonwealth,” and “state,” Hobbes also used the phrase “body
politic” to refer to the same idea, namely, the person by fiction of the group agent personated by the sovereign.

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very sovereign in virtue of whose personation it comes into being in the first place. If the

people has not expressly authorized the sovereign, it follows that the sovereign does not

represent the people “truly” (in the technical sense discussed in section 3.1). A people, like

any other person by fiction, is not really a responsible agent, and so it would be misleading

to say that the people “owns” the sovereign’s actions. But of course whatever the sovereign

does in the people’s name must be ultimately imputable to someone—and to someone other

than the sovereign himself, who in this context is merely an artificial person. It is the subjects

qua multitude who are individually the “authors” of the sovereign deeds.

It follows from this that the people is a sui generis person by fiction. For it cannot

expressly consent to the sovereign’s authority and yet its personation is not explicable

through ordinary statutory authorization because, by construction, there is no civil law prior

to the covenant of political incorporation. In the case of bridges, children, fools, and madmen,

it falls on the civil law (or some other convention) to prescribe who has the authority to

personate the entity in question. But, again, the multitude’s entitlement to authorize the

sovereign to act in the people’s name cannot be statutory, since there is no civil law prior to

the covenant of political incorporation. As Skinner persuasively argues, the multitude can

authorize the people’s personation “because the individual members of the multitude

stand—and alone stand—in the appropriate relationship of dominion with respect to the

person of the state [or people].”26 There must be some sense in which the subjects, omnes

singuli, “own” the people independently of any law, statute, or convention. Only on this

26 Skinner 1999, p. 23

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assumption can we make sense of the multitude’s entitlement to authorize the sovereign to

act on the people’s name.27

Skinner’s proposal is that “The source of their dominion lies in the fact that the union

of the multitude bring the state into existence,”28 by analogy with the case of maternal

dominion “by generation” over children in the state of nature. Although Skinner does not

develop this analogy in any detail, one can readily see the point of his suggestion. According

27 It is crucial that in our ontological bookkeeping we keep track of the distinction between (i) the person
or persons who authorize, (ii) the person represented or personated, and (iii) the personator or representer.
In the present context, these are respectively (i) the multitude or plurality of contractors, (ii) the people, and
(iii) the sovereignty. One salient issue with Richard Tuck’s most recent analysis of Hobbes is precisely his
failure to grasp the clear distinction between these different entities, e.g.: “For Hobbes… a people did not
possess even conceptually a distinct identity from their sovereign” (2015, p. 96).
Tuck’s textual evidence for this claim is DCv XII.8, where Hobbes does say that “The people rules in all
governments. For even in monarchies the people commands; for the people wills by the will of one man… and
(however it seem a paradox) the kind is the people.” Here Hobbes is writing as a provocateur, but his meaning
is quite clear. Of course the king is not literally identical with the people, and yet it makes no sense to speak of
the people as it could do anything other than what the king does in its name (in a monarchical commonwealth,
that is). That this is Hobbes’s point is confirmed by the view he is trying to refute—namely, that “the city hath
rebelled against the king (which is impossible)” because the people properly speaking cannot speak with any
voice other than the sovereign’s. In other words, Hobbes’s “the King is the people” roughly means “the King
alone represents or acts in the name of the people.” This reading is consistent with the note to DCv IV.13 where
Hobbes says that a city “is contained in the person of a King”: the city (or people) is “contained” in the person
of the king insofar as it cannot act but through the person of the king, which is not to say that the people and
the king are the same entity (logically or ontologically).
Elsewhere, Tuck also argues that “the sovereign represents or is the agent for the citizens taken as
individuals” (op. cit., p. 105) based on the fact that “in both De Cive and De Homine Hobbes said in various places
that the sovereign’s will is ‘taken to be’ the will of each of the citizens—that is, habenda est, which we might
translated as ‘is deemed’” (p. 105n41). It is puzzling that Tuck should rely so heavily on Hobbes’s early texts
when discussing his political ontology, the very issue on which Leviathan is most innovative and sophisticated.
Still, even with respect to the early texts, Tuck confuses the entity who authorizes and owns, or is responsible
for, an action with the entity represented. The sovereign represents the people but the individual subjects own
up to the consequences of whatever is done in the people’s name. That the sovereign represents a single people,
not subjects omnes singuli, is crucial to understanding how the covenant of political incorporation brings about
a collective agent.
The insight of Hobbes’s distinction between the group to which the action is attributed and the
individual members who are taken to be “authors” of the group’s deeds is nicely illustrated by an example I
borrow from Anna Stilz (2009): suppose an orchestra rents a house to practice and in the middle of rehearsal,
it unexpectedly shatters the windows due to the vibrations caused by the instruments. Since no one musician
was causally pivotal to the breaking of the window, we cannot say that any particular person is responsible for
what happened. “We should therefore assign responsibility for compensating the owner to the orchestra as a
whole” (pp. 188-189); it was the orchestra that broke the windows. But orchestras—like Hobbes’s persons by
fiction—are incapable of owning up to the consequences of what they do. So inevitably “the effective burden
of compensation will devolve upon individuals members” (p. 189). This is what Hobbes means by referring to
members omnes et singuli as “authors” of the group’s deeds.
28 Skinner 1999, p. 23.

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to Hobbes, the source of maternal dominion is not so much the act of procreation itself, but

the fact that the life of the child depends on the mother’s decision not to expose the child to

die: “seeing as the infant is first in the power of the mother, so as she may either nourish or

expose it, if she nourish it, it oweth its life to the mother, and is therefore obliged to obey her

rather than any other, and by consequence the dominion over it is hers” (L XX.5). Similarly,

one could say that if the multitude decided not to incorporate, there would be no people.

Because the people owes its existence to the decision of the multitude, the latter has

“dominion over” the former and can authorize a personator on its behalf.29

One can hardly exaggerate the transformative effects of the political covenant of

incorporation. The free and unrestrained natural persons of the state of nature become

subjects; the multitude, a mere aggregation, is transformed into a people or commonwealth

or state—a true group agent, with volitional unity and collective rationality; and the

sovereign now “bears” the person of the people in whose name it is authorized to act while

every subject remains author of, and thus responsible for, the sovereign’s judgments and

actions. In this last point we see the full force of the theory of personation, as it explains why

the sovereign’s actions are the actions of the people and why subjects must own up to their

29 In his very short gloss on the maternal analogy, Skinner mistakenly interprets maternal dominion as
grounded in the fact that “the mother brings her child into the world” (Skinner 1999, p. 23). Hobbes clearly
rejects the idea that generation by itself is a source of dominion: “For as to generation, God hath ordained to
man a helper, and there be always two that are equally parents; the dominion therefore over the child should
belong equally to both, and he be equally subject to both, which is impossible; for no man can obey two masters”
(L XX.4; see Locke’s very similar argument against Filmer’s patriarchalism in 1988 [1689], Book I). This is likely
why Runciman objects to Skinner’s analogy (2000, p. 273n13), but I think the analogy can be salvaged. The
multitude resembles the mother not because it begets the people, but rather because the people comes into
being and continues to exist only because the multitude wills it so, just as a child in the state of nature can only
survive because the mother choses to keep and protect the child.

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consequences. When Hobbes tell us that the state is “one person” (DCv V.9; cf. L XVII.13), he

speaks literally and in full awareness of the vast normative implications that follow.30

Hobbes is very consistent throughout his writings whenever he discusses this

complex political ontology. There is, however, one significant revision in his account of the

process of political incorporation that is worth drawing attention to. Recall the actual words

of the covenant: “I authorize and give up my right of governing myself to this man, or to this

assembly of men, on this condition, that thou give up thy right to him, and authorize all his

actions in like manner” (L XVII.13; cf. DCv VI.20). Notice that the covenant actually involves

two logically distinct commitments: first, a commitment to appoint a common power and

transfer my right to all things on the condition that you (and everyone else) do the same;

second, a commitment to take this particular person or group of persons to be the common

power entitled to impose sanctions among us. It is important that both things be done in the

process of incorporation because it would be no good for us to agree to have a common

power while disagreeing as to who shall perform that role. In other words, the political

covenant involves a unanimous commitment to have a sovereign along with a general

agreement on who the sovereign shall be (hence Hobbes’s use of the demonstrative “this”).31

30 Tukiainen (1994) offers a perceptive account of the rhetorical value of the “metaphor” of
commonwealths as persons: “The function of the metaphor of commonwealths as persons is to whip up a strong
passion to govern the thoughts of men,” to “impress upon men’s minds the basic truth that there is no life
without society… To be inside is to be alive. To be outside is to die” (pp. 52-53). The rhetorical analysis is well
taken, but fails to account for the literal sense in which commonwealths are persons. Hobbes’s claim is
primarily a philosophical point about the ontology of commonwealths, not a rhetorical embellishment. In fact,
Hobbes rejected any merely metaphorical account of group personality (see p. 109n23).
31 I say that the commitment to incorporate is unanimous while the agreement on the identity of the
sovereign is merely “general” because, as we shall see, the identity of the sovereign is decided by majority rule
in Hobbes’s early, two-stage account of incorporation, though it must be unanimous in the later, single-stage
account.

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The logical independence of these commitments comes across very clearly in

Hobbes’s early version of the process of political incorporation. In both Elements of Law and

De Cive, Hobbes argues that in the case of commonwealths set up by institution,

incorporation is a two-stage process. First, the multitude covenants to have a sovereign, at

which point it becomes a pro tempore sovereign assembly of the whole. Then, the democratic

assembly must decide who shall thenceforth be the perpetual sovereign: either a single

individual, or a council, or itself as the assembly of the whole. In other words, incorporation

by institution always involves a democratic stage prior to the definitive appointment of the

sovereign in perpetuity: “The first order of time of these three sorts [of commonwealths] is

democracy, and it must be so of necessity, because an aristocracy and a monarchy, require

nomination of persons agreed upon; which agreement in a great multitude of men must

consist in the consent of the major part; and where the votes of the major part involve the

votes of the rest, there is actually a democracy” (EL XXI.1; cf. DCv VI.2).

Leviathan offers a different picture of the process of incorporation, collapsing the two

logically independent moments of the political covenant into a single act. The willingness to

institute a commonwealth becomes inseparable from the appointment of a sovereign: “The

only way to erect such a common power… is to confer all their power and strength upon one

man, or upon an assembly of men, that may reduce all their wills, by plurality of voices, unto

one will, which is as much as to say, to appoint one man or assembly of men to bear their

person, and every one to own and acknowledge himself to be author of whatsoever he that

so beareth their person shall act” (L II.XVII.13).

It seems to me that the reason why Hobbes might have given up the two-stage account

of incorporation was to strengthen his claim that commonwealths by acquisition are

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essentially on a par with commonwealths by institution. If political incorporation always

involved a democratic stage, the case of acquisition would be harder to explain, as one would

have to posit a democratic moment in which the assembly of the whole appoints the

conqueror by majority vote to serve as their sovereign. But this seems rather implausible.

On the other hand, if incorporation is just the appointment of the sovereign (in which act the

will to incorporate is already contained), then the covenant appointing a conqueror does

come closer to the canonical case of sovereignty by institution.32

3.3 The Problem of the Majority

Though he was unapologetic about his royalist preferences, Hobbes never claimed

that the theory of personation or his analysis of the political covenant of incorporation

singled out monarchy as the only legitimate form of sovereignty.33 The whole of his theory

appears to be equally consistent with a sovereign being either an individual natural person,

a council or the assembly of the whole. The fundamental political ontology remains

unchanged regardless of whether the commonwealth is a monarchy, an aristocracy or a

democracy—with one important exception. In a democracy, where sovereignty is exercised

by the whole assembly, the people is its own personator. As Philip Pettit observes, “there is

32 Richard Tuck has recently attributed to Hobbes an “explicit theory of the priority of democracy” based
on the early, two-stage account of incorporation (2015, p. 104n40). Tuck’s argument fails to explain why
Hobbes would have abandoned such a view by the time he wrote Leviathan. More importantly, it is unclear
why the merely temporal priority of democracy in the two-stage account of incorporation is of any normative
significance. Nothing in Hobbes suggests that he took democracy to be the “most fundamental way in which a
people are formed” (2015, p. 104) in any normative sense of “fundamental.” I therefore remain skeptical of
Tuck’s appropriation of Hobbes for the cause of 18th century radical democratic politics (op. cit., pp. 120, 141).
33 “There was much that science could not prove. It could tell us that no society without an ultimate and
absolute legal authority possessed a sovereign and that it was to that degree not a state at all; but it could not
demonstrate that a monarch would make a better sovereign than an assembly,” Ryan 2012 [1996], p. 126.

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a clear contrast between the status that a people has as a passive person [as personatee] and

the status that it gains under democracy as an active person or personator.”34 The fact that

a democratic people alone enjoys this “active” role helps make sense of Hobbes’s seemingly

contradictory remark that “the people, considered as one person, its supreme authority

being already transferred [to a monarch or aristocratic council], is no longer now in being”

(DCv VII.8).35 In light of the theory of personation, it must be a mistake on Hobbes’s part to

say that the people literally ceases to exist in a monarchy or an aristocracy, for the people

exists qua person by fiction for as long as it is personated by any (one) sovereign, even a non-

democratic one. But, following Pettit’s suggestion, it might be best to interpret Hobbes as

saying that in a non-democratic commonwealth the people no longer exists as an active

person. In any event, Hobbes is committed to the view that the people never ceases to exist

while it is being personated by a sovereign, even if democracy alone makes it possible for the

people to acquire the peculiar status of being its own personator.

This raises yet another difficulty because it would seem to follow, per Hobbes’s own

definition, that a democratic people is a natural person. If the “passive” and the “active”

people are one and the same entity, it would appear that the sovereign demos is as capable

of self-personation as you and me. Clearly this is cannot be Hobbes’s view, since all group

agents are persons “by fiction,” that is, entities whose agency is parasitic on that of the

artificial person who personates them. The “active” people must be the artificial person

34 Pettit 2008a, p. 73; cf. also pp. 80, 148. The “passive”/”active” contrast (which Hobbes does not use
himself) is reminiscent of Rousseau: “The public person thus formed by the union of all the other formerly
assumed the name City and now assumes that of Republic or body politic, which its members call State when it
is passive, Sovereign when active” (SC I.6.10; cf. Chapter 5.1 on this very subject).
35 The Latin original is equally at odds with what Hobbes says elsewhere about the ontology of the
people: “Quo facto patet populum ut personam unam, summo imperio ad hos translato, non amplius existere.”

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through whom the “passive” people acts and speaks, and they cannot be the same entity. By

definition, we know that the “passive” people is the group agent made up of the totality of

subjects. And we also know that the democratic assembly (like the aristocratic council)

makes its decisions by majority rule: “every man shall hold for the command of the whole

council, which is the command of the greater part of those men, whereof such council

consisteth” (EL XIV.7; cf. DCv V.7, L XVI.15). When the majority decides to adopt, say, Policy

P, what effectively happens is that the individuals on the winning coalition (those in the

majority) determine what will count as the decision of the entire assembly, as a single group.

When the majority votes for P, the assembly as a whole commits itself to enacting P, and

everyone regards the demos as being so committed. We may accordingly construe the

“active” people—the artificial person or personator of the democratic assembly—as the

mathematical construct of the majority. Just as the actor of our example in section 3.1 “bears”

the person of the actors’ guild when speaking in his capacity as guild president, so the

majority “bears” the person of the entire demos in adopting Policy P. The guild and the demos

“coopt” the voice of another—as all group agents do—, only that the voice coopted by the

democratic people is that of a mathematical construct (the majority).36 A sovereign people

is not a natural person after all, as its agential standing depends on the majority’s ability to

represent it.37

But is the majority in fact able to bear the person of the demos? Hobbes clearly

believes that majority rule is a perfectly adequate way for a group to decide what it wants,

36 Pettit 2014, p. 1648.

37 Tuck’s equation of people and sovereign (see p. 111n27) seems to be premised on a failure to
distinguish the majority as personator from the people as the entity personated: “If the assembly is the people
in a democracy, then it must simply follow (on Hobbes’s analysis) that the monarch is the people in a monarchy”
(2015, p. 100).

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intends to do, commits to doing, etc. But as recent work in social choice theory conclusively

shows, he was wrong to think that the majority can by itself bear the person of a group. No

algorithm for individual preference-aggregation such as majority rule can be a reliable

personator for a group. A democratic demos that relied blindly on majority rule would be

irreducibly liable to incoherence, to the point of compromising the intelligibility of

ascriptions of agency to the collection of individuals who make it up.38

The key problem for Hobbes is the following. Remember his principle that “the unity

of the people,” as of any other group agent, depends on the “unity of the representer” (L

XVII.13). As I explained before, the unity-of-representer condition is supported by the idea

that group agents must, like any agent, speak with a single voice. Call this the univocality

condition. Crucially, for an aggregate to warrant attributions of agency, the univocality

condition has to be met diachronically as well as synchronically, i.e. the group must speak

only with one voice at any given time and with a single voice across time. The two dimensions

of univocality are independently necessary and jointly sufficient for the aggregate to display

agential coherence, the sort of practical rationality in virtue of which we can sensibly interact

with the group as a person. To see the importance of both dimensions, we simply need to

reflect on the difficulty of interacting with group agents with serious breakdowns of

univocality. Take the example of the Catholic Church. During the Western Schism (1378-

1417) there were three Popes, each of whom took himself to be entitled to speak on behalf

of the Church. This breakdown in synchronic univocality compromised the standing of the

38 The doctrinal paradox (Kornhauser and Sager 1993) show this to be the case with respect to majority
rule. The discursive dilemma extends this impossibility result to any individual preference aggregation
algorithm (List and Pettit 2002 and 2011, Chapter 2). The analysis that follows draws on Pettit’s critique of the
Hobbesian account of group agents as “pragmatic fictions” (2014, pp. 1647-1652; see also 2008a, pp. 82-83).

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Church as a single group agent, as it was impossible to tell which Pope’s directives counted

as the Church’s views, decisions, policies, etc. Synchronic univocality is obviously

indispensable for the aggregate to intervene in the social world as a single agent. But what

if an uncontested Pope turned out to be an unpredictable and erratic spokesperson, issuing

contradictory directives and adopting incompatible commitments one day after the next?

Though speaking with a single voice at any given time, the Church would fail to be univocal

in the diachronic sense: its commitments and avowals would lack coherence across a wide

range of issues, making it equally impossible to interact with it as an agent.

The point of this example is simply to highlight the sense in which the univocality

condition—the idea that the unity of the represented depends on the unity of the

representer—is at heart a requirement of practical rationality. Groups must speak with a

single voice because they cannot otherwise display the rational coherence that enables us to

interact with them as agents. This casts Hobbes’s unity-of-the-representer principle in a

slightly different light: the agency of the group depends on the unity of its personator because

a unitary personator ensures that the group will display collectively rational behavior. And

this is obviously true of a people personated by a single natural person. Provided the

monarch is rational, the people as a group agent will speak with a single and coherent voice.

Contrary to what Hobbes believes, this is not true of the mathematical construct of

the majority. The majority may well be a “single” voice, but it is not a voice that can by itself

ensure collectively rational decision-making. As Pettit and List have conclusively shown, no

matter how rational the members of a group are, no algorithm for individual preference-

aggregation can by itself ensure that a group’s decisions on a variety of issues will be

collectively coherent. If a group is to exhibit the kind of rational coherence that warrants

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engaging with it as an agent, then the outputs of any bottom-up aggregation of individual

preferences or judgments on specific issues will have to be adjusted from the top down, with

a view to how the majority’s issue-specific resolutions cohere with one another. The

majority—the mathematical construct that “bears” the person of the demos—may be

diachronically univocal (there is only one majority for any given yes-no issue, ceteris

paribus), but it cannot be reliably coherent across a wide range of logically interrelated

issues. The mathematical construct of the majority is not unlike the imagined erratic Pope

of our example above; it is unreliable because its individual resolutions are unresponsive to

its other commitments and avowals. The majority by itself cannot represent the demos in

the rationally coherent way that is indispensable for us to engage with it as a group agent.39

Given this demonstrable difficulty with groups whose “voice” is a preference-

aggregation algorithm, it turns out that monarchy is the only form of sovereignty that gives

the multitude both the unity and the collective rationality necessary to constitute a people

as a true group agent. Only in the case of monarchy, where the people is represented by a

natural person, is the agential coherence of the group virtually guaranteed (assuming that

the monarch him or herself is a rationally coherent individual). But majorities are radically

different from natural persons in that respect. Unbeknownst to him, Hobbes’s theory of

personation can only justify attributions of agential status to monarchical commonwealths.

39 See List and Pettit 2002 for the formal argument behind this impossibility theorem, which they call the
“discursive dilemma” because it entails a tradeoff between collective rationality and responsiveness to
individuals’ preferences for any collective decision-making mechanism. The more strictly the group makes up
its mind by simply aggregating individual preferences, the less likely it is to behave as a reliably rational agent—
indeed, the less it makes sense to say that the group is making up “its mind” at all. Indeed, List and Pettit claim
that the most promising way to ensure group-level rationality is to relax the systematicity assumption of
preference- or judgment-aggregation functions (i.e., “The group attitude on each proposition depends only on
the individual’s attitudes toward it, not on their attitudes towards other propositions, and the pattern of
dependence between individual and collective attitudes is the same for all propositions,” 2002, p. 49).

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Though Hobbes might have welcomed this royalist conclusion, it comes at the expense of the

plausibility of his theory of collective agency. A theory that only confers agential status to

human groups whose collective decision-making procedures are dictatorial should be

rejected for that very reason.

3.4 Undivided Sovereignty

The covenant of incorporation is agnostic as regards the type of sovereign to be

authorized, but it is categorical in that it must be a single sovereign; everything hinges on the

“unity of the representer” (L XVII.13). Monarchs obviously satisfy this condition, for they are

natural persons with a single will. And Hobbes believes that aristocratic councils as well as

assemblies of the whole can equally provide the required agential unity. We have seen why

this is in fact not the case, but I shall set the issue aside for the remainder of this chapter.

While Hobbes’s commitment to the univocality of sovereignty is grounded in his

theory of personation, the inferences he draws from it are largely inspired by the work of

French jurist Jean Bodin. It was Bodin who in his 1576 Six Livres de la République offered the

first truly secular account of the constitutive relation between sovereignty and statehood,

while defining the former as being absolute: “Sovereignty is the absolute and perpetual

power of a commonwealth…–that is, the highest power of command… [A] commonwealth is

a just government, with sovereign power, of several households and of that which they have

in common.”40 Bodin’s most lasting contribution was his analysis of the “prerogatives,”

40 Bodin 1991 [1576], p. 1. Though scholastic thinkers had previously theorized secular summa potestas
(as distinct from the papacy’s plenitudo potestatis), it was Bodin who “took the idea of sovereign power out of
the limbo of theology” (Sabine 1961, p. 399).

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“rights,” or “marks” (marques) of sovereignty, to wit: the powers of legislation, declaring war

and peace, appointing magistrates, adjudicating, granting pardons, fealty and homage,

coining money, and taxation.41 Bodin argued that it was impossible to discharge the role of

sovereign without possessing all these powers simultaneously, of which the first—the power

to legislate—was the most essential (as all others could be derived from it).42

Hobbes virtually replicated Bodin’s catalog of the “marks” of sovereignty (L XVIII.3-

18), as he also believed that a supreme political power—a “common power” capable of

solving the problem of assurance—must have all such rights and prerogatives. Most

importantly, Hobbes fully endorsed Bodin’s doctrine of the indivisibility of sovereignty: “that

the supreme authority may be divided, is a most fatal opinion to all commonwealths” (DCv

XII.5). Bodin had previously claimed that “if [the marques of sovereignty] were shared, there

would be no sovereign prince.”43 So strict was the Bodinian doctrine of indivisibility that

even “the right of pardon cannot be given away without giving up the crown itself.”44 In a

similar vein, Hobbes insisted that the powers of lawmaking, enforcement, and adjudication

are equally fundamental to government, with the implication that they can never be torn

asunder: “But they seem to have looked very shallowly into the nature of government, who

thought that the constraining power, the interpretation of laws, and the making of laws, all

which are powers necessarily belonging to government” can ever be divided (DCv XII.4).

41 Bodin 1991 [1576], pp. 56-78 (Book I, Chapter 10: “On the true marks of sovereignty”).
42 “We thus see that the main point of sovereign majesty and absolute power consists in giving the law to
subjects in general without their consent,” Bodin 1991 [1576], p. 23; cf. also pp. 55 (“The power of the law lies
in him who has the sovereignty”) and 58 (“This same power of making and repealing law includes all the other
rights and prerogatives of sovereignty”).
43 Op. cit., p. 46.
44 Op. cit., p. 75.

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The Bodinian rationale for the doctrine of indivisibility was what Julian Franklin calls

“the Supremacy Thesis”: Bodin “proceeded to derive the necessary rights, or ‘marks’, of

sovereignty from the concept of supremacy itself. The question that he asked, in other

words, was what prerogatives authority must hold exclusively if it is not to acknowledge a

superior or equal in its territory.”45 But Hobbes’s reasons are not quite as straightforward.

Because Hobbes appealed to the doctrine of indivisibility as an argument for the absolute

character of sovereign power, it would have been an obvious circularity to derive the former

from the latter. Unlike Bodin, Hobbes had enough conceptual resources to provide an

independent foundation for the doctrine of indivisibility, which he based on two key ideas.

The first comes straight from the theory of personation: there could only be one sovereign

because the agential unity of the state (or the people) depended on the “unity of the

representer” (L I.XVI.13). The second follows from the functional description of the role of

the sovereign as a “common power” capable of solving the problem of assurance. Unless the

sovereign was in possession of all the Bodinian “prerogatives,” it would be unable to

effectively solve the problem of the state of nature. It was of the essence for Hobbes that the

sovereign could act with the utmost energy and efficacy in fulfilling its role, which can only

be reliably counted upon if all the powers of the state are concentrated in the same person

of the personator. If there can only be one sovereign, and if the sovereign must have all the

public powers to discharge its role as “common power,” then the prerogatives of sovereignty

must be “incommunicable and inseparable” (L XVIII.16).46

45 Franklin 1991, p. 300.

46 The very weaknesses Hobbes associated with divided sovereignty would later be hailed as virtues by
the American Founders. Whereas Hobbes feared that less than absolute power was insufficient to leave the
state of nature behind once and for all, the Founders feared that anything short of severely limited and
constrained power would result in the kind of abuse they suffered at the hands of colonial magistrates. For an

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The crucial implication of the doctrine of indivisibility espoused by both Bodin and

Hobbes is that it rules out the possibility of a “mixed constitution.” Thinkers in the

Republican tradition (including Hobbes’s contemporary, James Harrington) had long argued

that the best constitutional arrangement involved a “mixture” such that the whole of political

power was never in the hands of a single agency. As Hobbes and Bodin understood it, the

“mixed” constitution was meant to decenter political power by combining institutional

elements of monarchy, aristocracy, and democracy. The paradigmatic example of a “mixed

constitution” was Rome, especially as described by Cicero, Livy, Polybius, and, centuries

later, Machiavelli. For these republican thinkers, the constitutional decentralization of

power was the answer to the problem of political stability and, more importantly, the most

reliable safeguard against political domination.47

As far as Hobbes was concerned, the mixed constitution was a contradiction in terms.

There simply cannot be a single constitution if there are different bodies with political

decision-making power none of which stands above all the others. For which is to be taken

as sovereign? Which is to be obeyed in case they ever disagree? If the state speaks with a

plurality of voices, whose is to be taken as decisive or ultimate? Indeed, Hobbes argued, “if

there were a commonwealth, wherein the rights of sovereignty were divided, we must

confess with Bodin, Lib. II. Chap. I. De Republica, that they are not rightly to be called

illuminating discussion of the central importance of such concerns during the early days of the American
Republic, see Wood 1998, Chapter IV (“The Restructuring of Power”).
47 For a review of the core tenets of the classical republican tradition and the place of the “mixed
constitution” therein, see Pettit 2013, esp. pp. 170-173 and Pettit 1997, Chapter 1 (“Before Negative and
Positive Liberty”), as well as Skinner 1998, pp. 34-35. See also Fukuda 1997, pp. 10-15, on Polybius’ account
of Rome and Sparta, Polybius’ influence on Harrington, and the differences between the ideas of the mixed
constitution in Aristotle, Polybius, and Machiavelli.

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commonwealths, but the corruption of commonwealths” (EL XXVII.7).48 The mixed

constitution as Hobbes understood it could not even pass the test of synchronic univocality.49

There were, to be precise, two related problems with the “mixed constitution.” The

first is that, strictly speaking, it was no constitution at all, for a state wherein the prerogatives

of sovereignty are divided cannot in fact solve the problem of assurance. Absent a unified

center of political decision-making with all the power to enforce its will, there is no “common

power” properly speaking. The state can be reliably tasked with the “conservation of peace

and justice” only if all its powers can be used in concert, in pursuance of a single and coherent

plan of action. Hence, “The division therefore of the sovereignty… introduceth war” (EL

XX.16). The fatal flaw is that the very possibility of disagreement between the different

centers of power of a mixed constitution rules it out as a reliable sovereign. And secondly,

since a “mixed constitution” lacks a sovereign by design, it does not even constitute a people

or a commonwealth because it lacks the requisite “unity of the representer” (L XVI.13).

Consequently, “such government is not government, but division of the commonwealth into

three factions, and call it mixed monarchy, yet the truth is that it is not one independent

commonwealth, but three independent factions, nor one representative person, but three”

48 Hobbes is probably referring to the following passage from Bodin: “But [really] to combine monarchy
with democracy and with aristocracy is impossible and contradictory, and cannot even be imagined. For if
sovereignty is indivisible, as we have shown, how could it be shared by a prince, the nobles, and the people at
the same time?” (1992 [1576], p. 92.). It is noteworthy that Hobbes explicitly references Bodin, as mentions of
other authors by name are extremely rare in his writings and most are reserved for people with whom he
intensely disagrees, especially Aristotle.
49 Though secondary relative to the argument from the unity of the representer, Hobbes also had a
rebuttal for the republican claim that the mixed constitution was the best institutional safeguard for individual
liberty and the only political arrangement fit for a free state: “There is written on the turrets of the city of Lucca
in great characters at this day the word LIBERTAS; yet no man can thence infer that a particular man has more
liberty, or immunity from the service of the commonwealth, there than in Constantinople. Whether a
commonwealth be monarchical or popular, the freedom is still the same” (L XXI.8). On Hobbes´s rejection of
the underlying republican conception of liberty as non-domination, see Pettit 1997 (pp. 37-39), Skinner 1998
(pp. 9-11, 59-60), and Pettit 2012.

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(L XXIX.16). The conceptual aberration of a mixed constitution by the lights of the theory of

personation is analogous to the physical deformity of a man who “had another man growing

out of his other side” (L XXIX.17).

None of this is to say that the sovereign cannot delegate the exercise of its powers to

different officials or bodies with limited mandates. In all such cases, administration remains

distinct from sovereignty: the magistrate’s decisions are authoritative only to the extent that

the sovereign consents to them, expressly or through silent concurrence.50 The point is that

however the administration is arranged, there will always be the final authoritative will of

the sovereign, whereas in a mixed the constitution there is always the possibility of

contradiction between the different decision-making agencies. Absent a single ultimate

authority (which would then be sovereign), such disagreements undermine the very

purpose of having a state—to wit, the erection of a single, common power mighty enough to

reliably solve the problem of assurance.

50 Confirmation of an official’s decision does not require an affirmative act: “When long use obtaineth the
authority of a law, it is not the length of time that maketh the authority, but the will of the sovereign signified
by his silence (for silence is sometimes an argument of consent)” (L XXVI.7). Bodin had made much the same
point, arguing that the sovereign’s “sufferance” of the administration’s decisions have the validating effects of
explicit confirmation. “For it is well known that the laws, ordinances, letters patents, privileges, and
concessions of princes, have force only during their lifetimes unless they are ratified by the express consent, or
at least the sufferance, of a prince who is cognizant of them” (1992 [1576], p. 12).
Incidentally, Bodin appealed to the idea of sovereign “sufferance” to make sense of so-called mixed
constitutions as truly instances of democracy: “But if no one in particular has the power to make laws, and the
power resides in all together, then it follows of necessity that the state is democratic” (op. cit., p. 92). Bodin
believed that this was true of Rome in particular, a point directly aimed against the traditional republican
account of the Roman constitution: “the Senate had no power except by sufferance of the tribunes and the
people. And he who has nothing but by sufferance, as we said above, does not have anything at all… There is
thus no doubt whatever that, after the expulsion of the kings, the Roman state was democratic except for a
period of two years” (p. 98).
Richard Tuck has argued that the sovereign/administration distinction in Bodin and Hobbes is the
source of Rousseau’s more systematic sovereign/government distinction and, ultimately, of the “plebiscitary
model” of modern democracy (2015, pp. 21-22, 90-91). As I argue in Chapter 5, Rousseau’s idea is quite
different, as it is premised on a principled distinction between law and decree that Hobbes nowhere articulates.
The relevant continuities between Hobbes and Rousseau lie elsewhere, primarily in Rousseau’s understanding
of the “moral person” of the sovereign (chapter 5.1).

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Although Hobbes made much of his critique of the mixed constitution, it is in fact a

rather weak one. In following Bodin’s reasoning about the indivisibility of sovereignty,

Hobbes also fell prey to the mistaken idea that the only way to have a mixed constitution

“would be to give each of the partners the entirety of power simultaneously, which is of

course juridically absurd.”51 It is just as possible to conceive of a mixed constitution as the

distribution of different prerogatives of sovereignty coupled with coordination rules to

generate a single, corporate will among the different centers of political power. Modern

constitutional democracies often have that kind of structure, with different branches

entrusted with specific powers and certain bodies such as constitutional courts in charge of

resolving disputes among them. In other words, one could think of the elements of a mixed

constitution as comprising a corporate body in its own right—a possibility Hobbes failed to

envision. In fact, Hobbes’s own theory of personation opens the possibility for an account of

the single corporate will of the different elements of a mixed constitution as a case of meta-

incorporation involving different collective agents.

Its defects aside, the fact remains that Hobbes held onto the Bodinian doctrine of the

indivisibility of sovereignty. If sovereignty cannot be divided, it follows that it cannot be

internally constrained or limited. Since sovereignty cannot be limited from above or below,

it follows that it must always be absolute.

51 Franklin 1991, p. 303.

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3.5 Absolute Sovereignty

The idea that sovereignty could be limited from below, by the claims and rights of

subjects or by the claims of the people as such, played a critical role during the English Civil

Wars. The parliamentarians drew on the Monarchomach doctrine of the inalienability of the

people’s original sovereignty to argue that the authority of the highest political office (be it

the crown or parliament) was just a delegation or trust from the people understood “not

merely divisim, as single subjects, but also conjunctim, as a universitas or ‘politique

corporation’.”52 The crucial conclusion that these theorists drew based on their account of

the ontology of the people was that “sovereign kings, though they be singulis majors, of

greater power than every one of their subjects, yet they be universis minors, of less power

than them all together.”53 Because of the superior standing of the people as a corporate

entity, the authority vested in the King must be understood as a fiduciary trust or a mandate

limited by the terms of the people’s delegation of authority. No political body has the kind

of absolute authority that only the people possesses, and inalienably to boot.

Hobbes was keenly aware of this theory and explicitly sought to refute it on the basis

of his theory of personation and the ontology of the people for which it argues: “For if by all

together they mean not the collective body as one person, then all together, and every one,

signify the same; and the speech is absurd. But if by all together they understand them as

52 Skinner 2005, p. 158. On the evolution of the parliamentarian doctrine, which ultimately became an
argument for parliamentary sovereignty, see pp. 162-165. The Monarchomach doctrine as developed in the
1579 Vindiciae Contra Tyrannos was fully Bodinian both with regards to the indivisibility of sovereign powers
and in rejecting the idea of a mixed constitution “in the strict sense of sharing or distribution of the rights of
(personal) sovereignty” (Franklin 1991, pp. 312-313).
53 This is Hobbes’s own paraphrase (L XVIII.18) of Henry Parker’s famous dictum: “the King, though he
be singulis Major, yet he is universis minor” (from Parker’s 1642 Observations Upon His Majesties Late Answers
and Expresses). According to Skinner 2005 (p. 159), Parker took this idea directly from the Vindiciae.

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one person (which person the sovereign bears), then the power of all together is the same

with the sovereign’s power; and so again the speech is absurd” (L XVIII.18). In other words,

if what the Monarchomachs and parliamentarians meant by “people” is just the multitude,

then there is, by definition, no person at all to confer, much less restrain, the sovereign’s

authority. And because the multitude is not a person, it cannot be said to be sovereign, or to

have any personal attribute whatsoever. On the other hand, if what is meant by “people” is

the corporate agent that is formed out of a multitude in virtue of a covenant of political

incorporation, then the populist doctrine is sorely mistaken. For the unity of a multitude, as

we have seen time and again, depends entirely on its being represented and being

represented by one person only—by the person of the sovereign.

The people, like all other persons by fiction, is inert all by itself: it cannot self-

personate, much less delegate power or confer a mandate as a people. It is inherent to the

people as a person by fiction that its ability to act is inseparable from its being represented,

and only the acts of its personator can count as its own deeds. This is why Hobbes insists

that the power of the people properly understood is “the same” as the power of the

sovereign, for the sovereign just is the people’s personator.54 The parliamentarian mistake

was to believe that the people could exist before, or independently of, the artificial person

who represents it—that is, the sovereign.55 In other words, the people is the kind of person

54 Which is not to say that the sovereign is the people or the state or the commonwealth, as Berns
mistakenly claims (1987 [1963], pp. 404, 413). See p. 111n27 for a discussion of the same error in Tuck 2015.
55 The populist theory of sovereignty espoused by both Monarchomachs and the English
parliamentarians may have further persuaded Hobbes of the convenience of dropping the two-stage account
of political incorporation I discussed in Chapter 3.2. The idea that there must always be a democratic stage in
the institution of a commonwealth could have seemed to concede the point that the people is always the
(chronologically) original sovereign. But even in his early account Hobbes never claims—unlike his
opponents—that sovereignty is inalienable, regardless of who holds it. The only condition for sovereignty to
be validly transferred is that the alienation be done in toto: “Wherefore every monarch may by his will make a
successor. But what a man may transfer on another by testament, that by the same right may he, yet living,

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that cannot exist except through an actor or personator; and that which cannot exist in its

own right cannot, a fortiori, authorize or limit a deputy before it is already being represented

by an artificial person (in this case, the sovereign). To model the authority of the sovereign

on fiduciary relations is, on Hobbes’s picture, deeply mistaken.

The Hobbesian sovereign cannot be limited “across” by other centers of power or

from “below” by the people collectively. Nor can it be limited from above, by some higher

authority. Hobbes’s argument against this possibility—perhaps his most important

argument for absolutism in general—takes the form of a simple reduction from the infinite

regress involved in the very idea of limited sovereignty: “For if his power were limited, that

limitation must necessarily proceed from some greater power. For he that prescribes limits,

must have a greater power than he who is confined by them. Now that confining power is

either without limit, or is again restrained by some other greater than itself; and so we shall

at length arrive to a power which hath no other limit but that which is the terminus ultimus

of the forces of all the citizens together” (DCv VI.18). Either there is no genuine sovereign,

or the sovereign—the power that is the terminus ultimus—must be absolute.

The crucial premise of Hobbes’s argument for absolutism is that the normative

validity of putative limitations on any form of power depends on their justiciability. If a

supposed limitation cannot be enforced, then it is spurious, hardly more than a hope or a

give or sell away. To whomsoever therefore he shall make over the supreme power, whether by gift or sale, it
is rightfully made” (DCv IX.12-13). The in toto condition for alienation of sovereignty follows directly from its
indivisibility. It not the case at all that for Hobbes “no sovereign agent is entitled to transfer its sovereignty to
another,” as Tuck believes (2015, p. 139).
Some modern interpreters confirm that Hobbes should have been weary of erroneous assimilations of
his early two-stage account of incorporation to the views of his parliamentarian opponents. Two examples are
Berns (“one could say that the people, as a democratic people, are the ultimate sovereign in every instituted
commonwealth,” 1987 [1963], p. 411) and Tuck (see p. 111n27).

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wish. This justiciability condition makes sense for Hobbes in light of his moral

conventionalism. Since the only genuine, interpersonal evaluative norms are those set up

and backed by a “common power,” the validity of such norms is inextricable from their

enforceability.

The justiciability condition also rules out the last possible argument for limited

sovereignty—the claim that sovereign power can be constrained by the individual rights of

subjects. In this respect Hobbes is even more radical than Bodin, who conceded that the

property rights of subjects had pre-political standing and effectively limited the reach of an

otherwise absolute sovereign.56 Hobbes denies that there could be any pre-political rights

at all other than the right to all things in the state of nature which, as I argued in section 2.1,

generates no correlative duties on third parties. Property rights in particular are only

possible in the first place because there is a sovereign who can settle who owns what, a

settlement that has meaning only because it can be adjudicated and enforced: “The

distribution of materials… is the constitution of mine, and thine, and his (that is to say, in one

word propriety), and belongeth in all kinds of commonwealth to the sovereign power” (L

XXIV.5; cf. EL XXIV.2, DCv VI.15).

Even if subjects had certain entitlements that did not, like property, arise only by the

sovereign’s will, the idea that those claims could count as restrictions on sovereign power is

56 “For there is no prince in all the world who has the power to levy taxes on the people at his pleasure
any more than he has the power to take another’s goods” (Bodin 1992 [1576], p. 21). The rationale for this gap
in Bodin’s absolutism was a radical distinction between the normative spheres of dominium and imperium, such
that political power cannot interfere with the natural law-based right of private property: “The family is the
sphere of the private; the state is that of the public or common. Hence he aimed at a radical separation of the
two. Sovereignty he believed to be different in kind from ownership” (Sabine 1960, pp. 403-404).

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a mirage.57 If the sovereign disregarded such putative limitations, there would be no one to

whom subjects could turn for redress or enforcement. The “limitation” would prove to be a

mere wish, a hope that the sovereign would do (or refrain from doing) certain things. And if

the sovereign did in fact observe such “limits,” this could not be construed as the result of an

effective restriction on its absolute sovereignty: it would just be the fortunate contingency

of a sovereign who happens to will what its subjects could only hope it would. Insofar as the

sovereign “respects” the rights of subjects, it is only because it wills to do so. The sovereign’s

absolute authority does not mean that it cannot exercise it with restraint or even

benevolence, but never because it is constrained to do so.58

Even more radically, Hobbes claims that the state, acting through the sovereign,

cannot possibly commit an injustice against its subjects: “whatsoever the people doth to any

one particular member of subject of the commonwealth, the same by him ought not to be

styled injury” (EL XXI.3).59 Hobbes offers three distinct though related arguments for this

striking view. The first and simplest is an argument from his conventionalist account of

justice. Justice, for Hobbes, simply means lawfulness, given that the civil laws (i.e., the

sovereign’s will) supply the moral conventions that are lacking in the state of nature.

“Therefore a common standard for virtues and vices doth not appear except in civil life; this

57 Pace Richard Tuck, according to whom “Hobbes too always acknowledged that there would be natural
law constraints on the sovereign” (2015, p. 118).
58 The possibility of an absolute yet benevolent sovereign is precisely the reason why Hobbes felt that his
theory was as compatible with individual liberty as the republican alternative (see p. 126n49). Hobbes failed
to appreciate that the republican concern was not with the interference of a vicious sovereign, but with the
arbitrary capacity to interfere that is constitutive of absolute sovereignty. I discuss the difference between the
ideas of non-interference and non-domination at length in Chapter 4.3.
59 Hobbes uses the word “people” here because he is discussing the case of a democratic sovereign, where
“people” can refer either to the person personated or the personator. This usage calls attention to the fact that
neither the sovereign qua personator nor the state qua personated—both of which can be described as “the
people” in a democracy—can be faulted with injustice or injury against subjects.

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standard cannot, for this reason, be other than the laws of each and every state… Although

it is true that certain actions may be just in one state, and unjust in another, nevertheless,

justice (that is, not to violate the laws) is and shall be everywhere the same” (DH XIII.9). In

other words, only a violation of the law can count as an act of injustice or a wrong (iniuria).

But if the law is nothing other than the sovereign’s will (DCv XIV.1), then whatever the

sovereign does seemingly in contradiction with the law must rather be taken as a revision of

its own will, never as an injustice strictly speaking.

The second argument draws on the legal maxim that “no man is a fit arbitrator in his

own cause” (L I.XV.31; EL XVII.6-7, DCv III.20-21).60 Any claim to the effect that the state or

the sovereign are guilty of injustice calls for some form of adjudication, as the matter cannot

be settled by anyone’s private judgment alone. One faces the following dilemma: either there

is some entity which can adjudicate between the subject and state, in which case it is the

sovereign (and holds absolute authority), or the subject must assert her own judgment as

against the state’s. But then the subject would be taking the place of judge in her own case,

which is inconsistent with the very idea of lawful adjudication. The only way out is that the

subject’s claim must be settled by a judge appointed by the sovereign and mandated to

decide in accordance with the sovereign’s own will, that is, the civil laws. But if the

sovereign’s putative injury is an expression of its own will, the judge has no jurisdiction

whatsoever to overturn it nor even to declare it a wrong against the subject.

Leviathan offers a third and far more interesting rationale for the impossibility of

sovereign injustice, this time drawing directly on the theory of personation. Recall that one

60 The classical statement of this principle comes from Justinian’s Codex: “Generali lege decernimus
neminim sibi esse iudicem vel ius sibi dicere debere” (Book III, Title V, p. 125).

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of the crucial aspects of authorization is that the artificial person who represents another is

the actor but not the author of what is done in the personatee’s name. It is the authorizer

who must own up to the consequences of the personator’s deeds, especially when the

personator represents a person by fiction that cannot itself be held to account. Now the

sovereign personates the people; but the people, qua person by fiction, is not a responsible

agent at all. It falls on the multitude, that is, on the subjects omnes singuli to own up to what

the sovereign does in the people’s name. This is precisely what Hobbes meant by saying that

“because the multitude naturally is not one, but many, they cannot be understood for one,

but many, authors of everything their representatives saith or doth in their name, every man

giving their common representer authority from himself in particular” (L XVI.14). Each and

every subject is committed to regarding him or herself as author of, and so responsible for,

the actions of the sovereign whom they have authorized to represent them as a group.

Now Hobbes is fully committed to the ancient principle that volenti non fit iniuria, that

whatever one endures or suffers voluntarily or with one’s consent is not a wrong or an

injustice.61 The theory of personation makes this principle fully applicable to the subject-

sovereign relation. If in virtue of authorization all subjects are individually the authors of

the sovereign’s deeds, then for purposes of moral accounting, anything the sovereign does

counts as being done by each and every one of them. Consequently, whatever the sovereign

does “against” a subject can only be described as a self-inflicted harm from the subject’s own

61 The locus classicus is an attribution to Ulpian: “…quia nulla iniuria est, quae in volentem fiat” (Justinian’s
Digesta, Title X, §1). This principle is central to the distinction between harms and wrongs. That which is done
to a person with her consent or permission (i.e. consistently with her voluntas) can constitute harm, but not a
wrong properly speaking. Hobbes endorses the principle explicitly: “It is an old saying, volenti non fit injuria,
the willing man receives no injury; yet the truth of it may be derived from our principles” (DCv III.7; cf. also
DCv VIII.7: “no injury can be done to him that willeth it”).

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point of view. But harms are not wrongs or injustices. This is exactly what Hobbes argues

in Leviathan: “because every subject is by this institution authors of all the actions and

judgments of the sovereign instituted, it follows that, whatsoever he doth, it can be no injury

to any of his subjects” (L XVIII.6).

In this way subjects’ consent to the covenant of political incorporation shields the

sovereign from any imputation of injustice in its exercise of absolute authority. If the

sovereign can never be guilty of injustice, it obviously follows that it enjoys absolute

impunity. There being nobody with the standing to pass judgment on the sovereign’s actions,

much less can there be anyone with the authority to exact punishment: “to the sovereign

power (whatsoever it doth) there belongeth impunity” (EL XX.12).

In a passage from Leviathan, Hobbes seems to make an exception to the general

principle of the non-justiciability of subjects’ claims against the sovereign: “If a subject have

a controversy with his sovereign (of debt, or of right of possession of lands or goods, or

concerning any service required at his hands, or concerning any penalty, corporal or

pecuniary) grounded in a precedent law, he hath the same liberty to sue for his right as if it

were against a subject, and before such judges as are appointed by the sovereign” (L XXI.19,

emphasis added). One must be careful to notice Hobbes’s qualifications on these

“controversies” with the sovereign. First, he holds onto the view that authorization makes

the state immune to imputations of wrongdoing, “for all that is done by him in virtue of his

power, is done by the authority of every subject, and consequently, he that brings an action

against the sovereign brings it against himself” (L XX.20). So the “controversy” cannot in any

event amount to an allegation of injury or injustice on the sovereign’s part. Moreover, the

actions can only be brought before “judges as are appointed by the sovereign”—meaning

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that the decision of the case remains an expression of the sovereign’s will (consistently with

the absolutist position). Hobbes goes on to add that the only actionable “controversies” are

those in which the sovereign act in question is undertaken “by force of a former law, and not

by virtue of [the sovereign’s] power” (emphasis added). It is obvious why a subject cannot

contest an action undertaken “by virtue of [the sovereign’s] power”: since the law is the will

of the sovereign, and the sovereign’s will can change at any time, it follows that “[t]he

sovereign of a commonwealth… is not subject to the civil laws” (L XXVI.6). The actionable

controversies are therefore limited to instances of bona fide confusion where a former law is

invoked by either the sovereign itself or one of its magistrates as justification for an act which

the subject nevertheless deems inconsistent with the law in question. In such circumstances,

the subject can legitimately demand to know which is in fact the sovereign’s will—the law

that supposedly justifies the act, or the manifest will that seems to contradict the law in

question? So understood, “controversies” against the sovereignly are in reality mere

requests raised by subjects aimed at clarifying what exactly is the sovereign’s will. When the

sovereign’s present deeds do not align with its past avowals, it is fair to assume that the law

as stated in the past takes precedence. But this assumption is not a “right” that subjects can

press against the sovereign; all they can do is demand clarification as to whether the law still

stands or whether the present deed amounts to a revision of, or perhaps an exception to, the

law. The “action” against the sovereign is really a request that it be unequivocally known to

all what each should henceforth take to be the law.62

62 Notice that insofar as actions “against” the sovereign only purport to make its will transparent (as
opposed to challenging it), there is no violation of the nemo iudex principle in the fact that the sovereign-
appointed judge is called on to decide the “controversy.” The judge is simply doing what it is supposed to:
interpreting the law as the will of the sovereign. This interpretive function is not strictly speaking an act of

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Another conceivable limitation of the sovereign’s authority might seem to obtain in

the special case of sovereignty by acquisition. As I explained in section 2.4, and unlike cases

of commonwealths by institution, in the process of authorizing a conqueror there is an

agreement of sorts between the multitude and the conqueror itself. This contract is

technically a covenant in Hobbes’s sense, as the subjects perform first—abandoning any

attempt to resist the conqueror—on the expectation that the conqueror will spare their lives.

But this covenant is such that the conqueror immediately discharges its obligation by simply

refraining to kill the vanquished. In letting the vanquished live, the sovereign is no longer

bound by the terms of that covenant. There are no lingering obligations once the conqueror

has been suitably authorized as sovereign.63

Though Hobbes rules out any justiciable limitation whatsoever on sovereign power,

it would be a mistake to infer that he is happy to approve of everything and anything a

sovereign may do. While the sovereign is immune from committing injustice, there are a

series of non-justiciable norms that should guide its exercise of absolute authority. In other

adjudication, as if subject and sovereign were parties to a legal dispute. I thank Philip Pettit for a helpful
discussion of this passage.
63 This point is well made by Alan Ryan: “The step to be attended to is that the sovereign’s obligation can
be instantly fulfilled. The sovereign in effect says to us, “If you submit, I will not kill you.” When he spares us,
he has fulfilled the obligation. Our obligation, on the other hand, endures indefinitely” (2012 [1996], p. 178).
However, Ryan’s suggestion that “our obligation…endures indefinitely” per the covenant with the conqueror is
misleading, as it implies that the conqueror’s authorization as sovereign takes place through that covenant.
The moment of authorization actually happens after the conqueror spares the lives of the vanquished and is
normatively independent from the vanquished-conqueror covenant. The authorization itself, not the
vanquished-conqueror covenant, resembles the contract of “each with all” of the canonical commonwealth by
institution: “The fact that they [the vanquished] each hold and act on the understanding that others are
similarly disposed [to take the conqueror as sovereign] means that there something close to the multilateral
contract that characterizes the generation of a commonwealth by institution” (Pettit 2008a, p. 118).
It is perhaps the failure to distinguish the covenant of authorization from the vanquished-conqueror covenant
for survival that leads Hoekstra to suggest (mistakenly, in my view) that there is no authorization at all in
commonwealths by acquisition: “Nor would the authorization model Hobbes employs in his discussion of
sovereignty by institution have supported the Stuarts; for their rule, as Hobbes describes it, was instead an
instance of sovereignty by acquisition” (2004, p. 40n36).

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words, the sovereign still has duties towards its subjects, though none of those count as

obligations properly speaking (for obligations presuppose contracts, which in turn

presuppose a “common power” with standing to adjudicate between the contracting

parties). Therefore, “It is true that they that have sovereign power may commit iniquity, but

not injustice, or injury in the proper signification” (L XVIII.6). All of the sovereign’s duties

spring from the general maxim salus populi suprema lex (EL XXVIII.1), which the sovereign

should regard as binding on essentially prudential grounds: “governing to the profit of the

subjects, is governing to the profit of the sovereign” (ibid.).64 Hobbes’s theory makes room

for the normative evaluation of the quality of the state’s performance, but in a way that is

completely independent from judgments about the legitimacy of its authority or its right to

perform as a state. Not one bit of the sovereign’s authority hinges on its observance of these

non-justiciable duties to its subjects. A duly authorized evil sovereign who cared nothing for

the good of its people would be a fool, but a fully legitimate ruler all the same.

Apart from the duties of equity that a sovereign ought to heed, one must never lose

sight of the very purpose for which individual subjects authorized the sovereign to be their

“common power” in the first place. The point of having a sovereign is to be able to live in a

peaceful, stable, cooperative society, where everyone can form reliable expectations for the

future and each is able to pursue long-term plans without the pervasive fear of violent death

that defines the state of nature. Absolutism means that a sovereign can do anything it deems

necessary to that end; it does not mean that a sovereign has the authority to undo the

64 Bernard Gert holds that “the sovereign, in accepting the free gift of the subject [through the political
covenant of incorporation], comes under the third law of nature prohibiting ingratitude” (Gert 1991, p. 25).
This seems right and also consistent with the prudential basis of sovereign duties, as the laws of nature are
themselves theorems of self-interest. Just to be clear, duties of gratitude are non-contractual, hence non-
justiciable.

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achievement of a peaceful, cooperative society. A sovereign, however absolute, must still

count as a solution to the fundamental problems of the state of nature, an important point to

which I return in section 3.7.

3.6 Obedience Short of Absolute

If sovereigns enjoy absolute authority, it seems logically necessary to infer that

subjects are bound by an equally unconditional obligation to obey. Absolute obedience

involves, first and foremost, a categorical prohibition on resisting the sovereign’s will: “no

man in any commonwealth whatsoever hath right to resist him, or them, on whom they have

conferred this power coervice” (EL XX.7). In terms of the theory of personation and its

account of authorization, resistance would involve a volitional contradiction. “[B]ecause

every subject is by this institution author of all the actions and judgments of the sovereign

instituted” (L XVIII.6), obedience to the state’s directives just is fidelity or obedience to one’s

own will. To resist the sovereign would be to resist an action that is in the last analysis

imputable to the subject himself. Properly understood, the act of authorization entails two

duties on the subject’s part: “One is a duty to take responsibility for his [the sovereign’s]

actions. But the other is a duty of non-interference.”65 Insofar as the civil laws are nothing

other than the sovereign’s will, not obeying them is a way of interfering with the sovereign’s

purposes. The obligation of non-interference with the sovereign thus involves, first, staying

out its way and, second, being a willing instrument for the satisfaction of its commands.

65 Skinner 1999, p. 9. It is a bit misleading that Skinner here speaks of “duty,” given that lawfulness is in
fact an obligation grounded in one’s consent to the covenant of political incorporation. The duty/obligation
distinction often goes unnoticed, but it is central to an adequate understanding of Hobbes.

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Hobbes goes further, however, and claims that there is also a positive duty to preserve

the state. In praising the law-abidingness and obedience of the ancients, he highlights that

“they could not entertain so strange a fancy, as not to desire the preservation of that by which

they were preserved” (DCv Preface, §2). This positive duty, like all others in Hobbes, rests

on a transparently prudential consideration: the burdens of political life are always dwarfed

by the perils and uncertainty of statelessness. He who fully understands what self-

preservation involves, cannot fail to grasp the need to preserve the state for the same

reasons that everyone ought to want to institute a sovereign in the state of nature.

But for all the insistence on the absolute impermissibility of resisting the sovereign’s

will, Hobbes in fact allows a series of important exceptions. The crucial principle to which

Hobbes appeals is that “Covenants and oaths are de voluntariis, that is, de possibilibus” (EL

XVI.18). Because only what falls within the scope of voluntary action can be a possible object

of covenants, whatever is impossible for anyone to do voluntarily cannot for that reason be

the object of a promise or covenant. That which we cannot voluntarily do cannot be

demanded of us. The crucial case of impossibility de voluntariis for Hobbes involves the

renunciation or transfer of the right (and duty) of self-preservation: “A covenant not to

defend myself from force by force is always void. For... no man can transfer or law down his

right to save himself from death, wounds, and imprisonment” (L XIV.29, emphasis added).

The right of self-preservation—though not its extent in the state of nature as a right to all

things—is fundamentally inalienable.

From this it follows that “A covenant to accuse oneself, without assurance of pardon,

is likewise invalid” (L XIV.30; cf. L XXI.13), for absent such assurance, one’s testimony is

instrumental to being punished—which one is always entitled to resist qua threat to one’s

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self-preservation. The inalienable entitlement to ensure one’s self-preservation extends

even to guilty criminals seeking to avoid the sovereign’s punishment, “for they but defend

their lives, which the guilty man may as well do as the innocent” (L XXI.17). Moreover,

subjects retain the right to refuse “any dangerous or dishonourable office”, with one

important condition: “When, therefore, our refusal to obey frustrates the end for which the

sovereignty was ordained, then there is no liberty to refuse” (L XXI.15). The idea seems to

be that the right of refusal ends where the necessary conditions for the preservation of the

state begin. This is clearly brought out in Hobbes’s example of a dangerous office: “Upon this

ground a man that is commanded as a soldier to fight against the enemy, though his

sovereign have right enough to punish his refusal with death, may nevertheless in many

cases refuse without injustice as when he substituteth a sufficient soldier in his place… And

when the defence of the commonwealth requireth at once the help of all that are able to bear

arms, every one is obliged, because otherwise the institution of the commonwealth, which

they have not the purpose of courage to preserve, was in vain” (L XXI.16). Soldiers can only

be granted the leeway to refuse when doing so does not substantially imperil the ends for

which the sovereign issued the dangerous command in question. At no point does Hobbes

suggest that absolutism requires subjects to embrace martyrdom when their interest in self-

preservation does not compromise the state’ survival. The state can carry on despite my

refusal to be its willing instrument; so I can refuse to obey if the command in question does

in truth imperil my life. Yet refusal can never be justified when the very subsistence of the

state is on the line.

It is clear from Hobbes’s explicit acknowledgement of these exceptions that subjects’

obligations of obedience are not quite absolute. However, it is only when one’s survival is at

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stake that the inalienable right of self-preservation entitles a subject to resist the sovereign’s

will. Yet the fact that obedience is less than absolute remains consistent with the sovereign’s

absolute authority, for Hobbes always reaffirms the sovereign’s right to punish the subject

whose refusal is nevertheless justified. Because the duty of self-preservation is not

contractual, is does not ground correlative obligations on others, including the sovereign.

The soldier who can defect when the “dangerous” or “dishonorable” command is given can

nevertheless be rightfully punished; and the convicted criminal who tries to escape

punishment is lawfully chased down by a sovereign who remains entitled to punish

defectors.66

It is also noteworthy that the rationale for exceptional rights of refusal perfectly

coheres with the very point of instituting a commonwealth. The reason why subjects

authorize sovereigns to rule over them is precisely to ensure the social conditions of self-

preservation—namely peace and social cooperation. The moment a sovereign’s actions

towards some individual subject run contrary to that end, the subject has no reason to

remain bound by the political covenant. For that subject in particular, the sovereign has

come to embody the threat that, as a contractor, he sought to avoid in leaving the state of

66 On Hobbes’s rejection of the so-called correlativity thesis between rights and duties, see Hoekstra
2004, p. 51, Douglass 2013, p. 737n, and Douglass 2015, pp. 121n67 and 122n81. My right to resist the
sovereign when self-preservation is at stake does not entail a duty of non-interference on the sovereign’s part
for the same reasons that my right to all things in the state of nature does not entail that others have a duty to
let me do as I wish (see Chapter 1.3). I therefore find Stilz’s formulation of Hobbes’s position somewhat
misleading. Based on the exceptions to the obligation of obedience I am discussing, she attributes to Hobbes
the view that “there is some ‘core’ content to the notion of a right to self-preservation that must be recognized
in any rightfully constituted state… Hobbes and Raz claim, in other words, that limited authority is still
authority” (2009, p. 91). Because Hobbes rejects the correlativity thesis, the fact that the obligation of
obedience is not absolute does not entail that the sovereign’s authority is limited. The sovereign’s authority
remains absolute even though the subject is permitted to disobey in such cases (which is why the state can still
persecute and prosecute the subject). Hobbes (unlike Kant, for instance) was perfectly comfortable with the
possibility of a practical conflict in which both parties are acting within their rights.

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nature. This is why Hobbes the absolutist can nevertheless affirm that “The obligation of

subjects to the sovereign is understood to last as long, and no longer, than the power lasteth

by which he is able to protect them… The end of obedience is protection” (L XXI.21).

In other words, the effective protection of subjects is a constitutive end of

sovereignty. While the sovereign has absolute authority to do as it sees fit to discharge its

role as protector and “common power,” that authority ceases to give rise to a corresponding

obligation of obedience when subjects are left unprotected, or when they are directly (i.e.

personally) threatened by the sovereign itself. The fact that the bonds of obedience are

broken at that point explains why a rational sovereign will always endeavor to seek the good

of its people; if it does not, it will inevitably sow the seed of rebellion. To be sure, rebellion

is always irrational on the part of the rebels, for “though the event follow [of attaining

sovereignty by rebellion], yet because (by gaining it so) others are taught to gain the same in

like manner, the attempt thereof is against reason” (L XV.7). But a “rebel” who resists a truly

failed sovereign is acting within his rights. And this is why, when the situation is properly

understood, one can see that “the good of the sovereign and the people cannot be separated”

(L XXX.21).67

Even so, one must take note of how restrictive the grounds of justified resistance are

for Hobbes. Only self-preservation can be invoked in justifying one’s unwillingness to heed

the sovereign’s will. What is most clearly ruled out is sedition or revolution, that is, a call to

67 This is also why, somewhat surprisingly for the modern reader, Hobbes’s Leviathan was thought to be
a “Rebell’s catechism” by many of his contemporaries, in the words of Bishop Bramhall (cited by Lloyd and
Sreedhar 2014, p. 11). In a sense, though, Bramhall’s charge casts too wide a net to the extent that anyone “who
sets forth principles for justifying authority by that very act provides standards for justifying the alteration or
abolishment of that authority when it departs from those principles” (Berns 1987 [1963], p. 408).

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resist the sovereign on political grounds. To revolt would involve one of two claims, or both:

that the sovereign is guilty of wrongdoing and must be punished, or that the sovereign no

longer speaks for the people (but presumably the revolutionary does). Both possibilities are

nonsense for Hobbes. That the sovereign could be “punished” in any way is impossible

because it assumes that the sovereign has justiciable obligations. That the sovereign would

suddenly no longer speak on behalf of the people is also impossible, as the act of

authorization whereby the sovereign comes to personate the people is an irrevocable act

intended to last in perpetuity (EL XX.4). If the sovereign’s status as spokesperson for the

people cannot be recalled, much less may some other person abrogate that role to him or

herself. The unity of the people depends on the unity of the representer, and one and the

same people cannot speak with two voices.

Hobbes’s diatribe against the very idea of tyrannicide—“that it is lawful for subjects

to kill such as they call tyrants” (L XXX.14)—is aimed at refuting these false doctrines: that

there is some standard of justice or law above the sovereign and that there may be more than

one spokesperson for the people at any given time. The truth is that killing the duly

authorized sovereign is nothing short of political suicide: once the sovereign is gone, there is

neither state nor people. Absent an authorized personator, the person by fiction of the

commonwealth exists no longer. Subjects are then released from their bonds of obligation

but at the expense of finding themselves back in the dreaded state of nature, most likely in

the form of civil war.

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3.7 Might and Right

In Chapter 1 I explained how human beings, being approximately equal, expansively

self-seeking, and constrained by limited resources for the pursuit of their own ends, are

bound to compete with each other, mistrust one another, and seek to subdue their fellows.

Lacking any common standard of justice, the state of nature is a recipe for disaster from the

point of view of human sociability. It is irrational for anyone to trust others, but without

trust social cooperation and peace are impossible. Only the agreement of all to institute a

common power can remedy the problem of assurance that defines life without a state. We

are therefore rationally required to consent to the authority of a common power on the

condition that everyone else do the same. As I have argued in Chapters 2 and 3, there is only

one kind of common power that can be validly authorized by everyone to solve the problem

of assurance: the power of a single, indivisible, and absolute sovereign to whom we owe a

near-absolute obligation of obedience.

We are now in a position to grasp the full picture of Hobbes’s view of state legitimacy.

First of all, it is clear that the Hobbesian account does purport to answer the existential

version of the problem of legitimacy. Given his understanding of the state of nature, it is

always rational—and hence justified—to depart that condition of natural liberty and

equality by instituting a state. States are legitimate in the existential sense because

instituting them is the prudentially rational thing to do for everyone, always. But more

importantly, I believe, Hobbes has a very clear idea of what constitutes the right to perform

as a state, independently of his answer to the existential problem. A putative sovereign has

the right to perform as a state if and only if (1) it has been authorized by each and every

subject to act in their name and (2) it effectively solves the problem of assurance and related

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defects of life without a state (which presupposes that the state is capable of upholding an

effective monopoly of lawmaking and enforcement within the territory under its control).

Both elements are necessary to constitute a legitimate state, a state with the right to perform

as such: “as men are, there is a coercive power (in which I comprehend both might and right)

necessary to rule them” (DCv XVI.15, emphasis added).

The authorization condition is crucial for Hobbes’s theory and is the main reason why

he has often been interpreted as a consent theorist of legitimacy and a prominent figure in

the contractualist tradition. It is obvious that consent is essential to commonwealths by

institution, but, as I argued in section 2.4, it is just as necessary to ground the authority

commonwealths by acquisition. That all legitimate states ultimately rest on consent is a

central point for Hobbes because it gives theoretical unity to his account of the varieties of

sovereignty. And this unity is critical for the very pragmatic reason that while institution

may be the most helpful theoretical model to understand the normative standing of states,

most states in the world have actually come about through acquisition, as Hobbes, the avid

reader of Thucydides, knew all too well: “Therefore, I put down for one of the most effectual

seeds of the death of any state that the conquerors require not only a submission of the men’s

actions to them for the future, but also an approbation of all their actions past (when there is

scarce a commonwealth in the world whose beginnings can in conscience be justified)” (L

R&C.8, emphasis added). The historical fact that most states have arisen out of conquest

must never lead us to forget that “Conquest is not the victory itself, but the acquisition by

victory of a right over the persons of men” (L R&C.7, emphasis added). The right in question

is none other than the sovereign’s right to act in the people’s name in virtue of the consensual

authorization of its standing as the personator or representer of the subjects omnes universi.

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For all of Hobbes’s insistence on the necessity of authorization by consent, many of

his contemporaries, as well as some modern interpreters, have claimed that the

authorization condition turns out to be spurious because too minimal. One argument for this

view is that the Hobbesian account of volition is so weak that consent carries no normative

weight at all. A Patrick Riley puts it, “Hobbes’s conception of will is both necessary to his

notions of covenant, obligation, and justice and inadequate in explaining how those notions

are in principle conceivable… [H]e was never able to show how an obligation can be derived

from an appetite… Thus, ‘The last appetite makes the essence of all covenants’ offers no

notion of political obligation or authority… At the risk of some exaggeration, it might be said

that the only reason that Hobbes’s system works at all is that he does not use the concept of

will as his definition requires.”68 The concern is that Hobbes’s radically naturalistic account

of volition cannot possibly explain the normative significance of a voluntary act in general,

much less the act of political authorization through consent. But this criticism misses the

mark. Instead of targeting the minimalism of Hobbesian voluntariness (which is indeed very

hard to accept), it invites the thought that the normative significance of volitional acts

depends on accepting the metaphysical doctrine of freedom of the will. Riley concedes as

much when he adds that Hobbes’s flaw “could not have been overcome except by adopting a

notion of will that is more or less suggested by Bramhall”—the same Bramhall who so

fiercely defended the doctrine of free will against Hobbes’s naturalism.69

68 Riley 1982, p. 58. See also pp. 15-16, 22-23, 33-35, and 43-44. Notice that Riley’s objection emphasizes
the alleged inadequacy of Hobbes’s idea of the will, not the implausibility of his idea of voluntariness (as I
argued in Chapter 2.3). Even if Hobbesian consent required reasonable alternatives for an act to be fully
voluntary, Riley’s criticism would still stand.
69 Riley 1982, p. 60. One of the virtues of Oslaretti’s theory of voluntariness, to which I alluded by contrast
with Hobbes’ (see p. 80n26), is precisely that it does not rely on the metaphysical doctrine of free will. What is

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The second argument that questions the sincerity of Hobbes’s authorization

condition appeals to the sui generis case of dominion by “irresistible force,” where no act of

consent appears to be required for there to be legitimate authority. The paradigmatic case

of authority by “irresistible force” is God’s natural kingdom, or his dominion over the entire

human race: “God in his natural kingdom hath a right to rule and to punish those who break

his laws, from his sole irresistible power” (DCv XV.5).70 The idea that irresistible power

carries full authority is actually a valid general principle for Hobbes, the application of which

is not inherently restricted to God. Indeed, “irresistible might in the state of nature is right”

(EL XV.13), but it just so happens that there is no actual instance to which this rule applies,

for “no man is of might sufficient, to assure himself for any long time, to preserve himself

thereby” (EL XV.14; cf. DCv XV.5). In other words, though no human being can in fact have

irresistible force, “if there had been any man of power irresistible, there had been no reason

why he should not by that power have ruled” (L XXXI.5). Hobbes seems to allow for the

theoretical possibility of political authority grounded in sheer might.71

But does he? Upon closer inspection, Hobbes’s explanation of why God’s irresistible

power issues in legitimate authority does not in fact do away with consent altogether.

Rather, his argument closely mirrors his explanation of how authorization occurs in cases of

sovereignty by acquisition. Before God’s infinite power, our liberty “is taken away by hope

defective in Hobbes is the substantive account of voluntariness, not his denial of the metaphysical doctrine of
free will.
70 God’s natural kingdom over the human race should not be confused with God’s authority by
covenant—that is, by consent—over the Jewish people and over Christians through baptism (DCv Preface, §5;
DCv XVI.2-3, 8; L XXXI.4, L XXXVI). The latter are just special instances of political sovereignty through
covenant, not of legitimate rule in virtue of irresistible force.
71 Notice that Hobbes only equates irresistible might with right in the state of nature, not right and might
in general (as T.H. Green, for instance, believes: “Each [Hobbes and Spinoza] conceives ius naturale [natural
law] as = potentia naturalis [natural power],” 1986 [1895], §42, p. 39).

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or fear, according to which the weaker, despairing of his own power to resist, cannot but yield

to the stronger” (DCv CV.7, emphasis added). The “yielding” is equivalent to the

acquiescence of the vanquished before a conqueror and counts as a form of authorization in

virtue of the interpretive rule of attributed consent. The reason why irresistible power is a

valid foundation for legitimate authority is because it is utterly irrational not to consent to

the authority of such a power, and hence (actual) consent can be validly inferred. In Hobbes’s

words, “For whatsoever is necessary to be by covenant transferred for the attaining thereof

[i.e. of the end of security], so much is transferred” (EL XX.5). The authorization condition

remains necessary for dominion by irresistible power, even if consent is only inferred or

attributed at best.

Quentin Skinner has also offered an interpretation of Hobbes that tends to obscure

the significance of the authorization condition. Skinner has made the valuable point that

Hobbes’s political thought must be understood against the background of the engagement

controversy of the English Civil War.72 After the execution of Charles I, the question was

whether the new political powers were in any way justified to perform as the state and to

demand citizens’ allegiance. According to Skinner, Hobbes’s theory of the state is a version

of the de facto theory of legitimacy advanced by the defenders of engagement.73 The main

argument for Skinner’s view is that Hobbes ultimately endorses the core tenet common to

every de facto theory of his day: that there is a “mutual relation between protection and

72 Skinner 2002 [1972], p. 289.

73 Skinner says that there is a “family resemblance” between Hobbes’s theory and the de facto theories of
his contemporaries (p. 307). Talk of “family resemblance” allows for enough differences between the two; for
this reason, I do not think it fair to attribute to Skinner a full assimilation of Hobbes to de facto theorists, but it
remains true that his interpretation in that particular essay does not do justice to the place of consent and
authorization in Hobbes’s political thought. Notably, Hobbes appears to have been interpreted as a de facto
theorist by Pufendorf himself (Douglass 2015, pp. 119-120).

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obedience” (L R&C.17) such that whenever protection is effectively given, one is bound to

obey the protector.74

Although Hobbes is no doubt consciously in dialogue with the theorists of the

engagement controversy, it would be a mistake to infer that his reasons for endorsing the

“mutual relation” thesis are the same (or similar enough) to those marshalled by other de

facto theorists. For the latter nowhere claim that the “mutual relation” between protection

and obedience is always mediated by the attribution of rational (actual but implicit) consent.

The reason why we must obey our protector is that it would always be rational to consent to

the protector’s authority and consequently, absent any evidence to the contrary, people can

rightly be assumed to have actually consented to their protector’s authority. Skinner is

certainly correct to insist that Hobbes’s system leads to the same practical conclusion that

the de facto theorists wanted to justify, i.e., that the new regime should be obeyed. But the

reasoning that gets Hobbes there is different precisely because he never abandons the

authorization condition. The de facto protector, whoever he might be or however he came

to be in a position to offer effective protection, is legitimized in part because he simply has

the power to protect—in this the de facto theorists were right—, but also in part because

people are correctly seen as having consented to his authority. The fact remains that, for

Hobbes, “the right of all sovereigns is derived originally from the consent of every one of those

that are to be governed, whether they that choose him do it for their common defence against

an enemy (as when they agree amongst themselves to appoint a man, or an assembly of men

74 Skinner 2002 [1972], p. 305-306.

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to protect them), or whether they do it to save their lives, by submission to a conquering

enemy” (L XLIII.123; emphasis added).

The truth in Skinner’s comparison between Hobbes and the defenders of engagement

is captured by the effective protection condition of Hobbesian legitimacy. Hobbes is very

clear about the functional role of the sovereign—to secure peace and enable social

cooperation by solving the problem of assurance. The sovereign can only fulfil this role if it

actually has the requisite power and uses it appropriately. As the de facto theorists would

put it, the claims to legitimate statehood are conditional on being an actual and effective

protector. Because the entire Hobbesian theory is premised on the clear protective role that

the state must serve, Hobbes the absolutist still has enough theoretical room to disqualify

certain forms of social power from the category of legitimate statehood. As Bernard Williams

has argued, “If the power of one lot of people over another is to represent a solution to the

first political question [i.e. the securing of order, protection, safety, trust, and the conditions

of cooperation], and not in itself be part of the problem, something has to be said to explain….

what the difference is between the solution and the problem, and that cannot simply be an

account of successful domination.”75 Because any entity that aspires to the title of legitimate

statehood must at least solve the assurance and related problems in the state of nature, a “lot

of people terrorizing another” cannot come to have the right to perform as a state because it

would just be reproducing the condition of war of all against all instead of eradicating it. The

salience of the efficacy condition in Hobbes’s theory should not lead us to conclude that the

75 Williams 2005, p. 5. Williams refers to the need that something be said to distinguish “the solution and
the problem” as the “Basic Legitimation Demand,” and he explicitly (and to my mind, correctly) attributes it to
Hobbes: “Even Hobbes, of course, did not think that a LEG [i.e. legitimate] state could be identical with a reign
of terror; the whole point was to save people from terror. It was essential to his construction, that is to say,
that the state—the solution—should not become part of the problem” (p. 4).

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successful exercise of seemingly absolute power is sufficient to constitute a legitimate state.

Not only is consensual authorization required as well; what is more, the exercise of such

power must be manifest in the effective protection of subjects.

In a sense, the authorization and effective protection conditions merge together in the

case of sovereignty by acquisition. When the vanquished acquiesce to the conqueror’s rule,

we can infer consent based on the principle that people are rationally assumed to agree to

whatever benefits them (provided their behavior gives no evidence to the contrary); in this

instance, they can be presumed to have authorized their (now) protector. But in addition to

that, the very fact that the conqueror succeeds in consolidating a monopoly over the use of

force in the territory in question, as required to provide effective protection, counts as

further evidence of widespread underlying consent (consent, that is, by Hobbesian

standards). If we assume (quite plausibly) that no sovereign could ever have enough power

to control most people most of the time, it must be the case that most people “go along” with

an effective sovereign most of the time if its monopoly of force goes largely uncontested.

Otherwise, the sovereign would not survive for long. Effective protection signals a critical

mass of acquiescent subjects, without which it would be impossible for the putative

sovereign to retain its hold on power.76

76 The idea that here must be a critical mass of acquiescence for any sovereign to successfully hold the
monopoly of force can be formulated in slightly different terms: if the sovereign has to punish every defector,
but punishment is costly and the sovereign faces a budget constraint for the purposes of punishing, then the
sovereign’s current effectiveness is evidence that defection is well below the sovereign’s budget constraint. I
borrow this idea from Randall Calvert: “any given punishment increases by a small amount the probability that
the leader will face a full-scale rebellion, deposing him or impairing his ability to lead in the future. In this sense,
the leader faces a kind of budget constraint on his ability to impose sanctions” (1987, p. 86). A similar argument
is made by Kinch Hoekstra: “If the government were contested by enough of the population, there would be
civil war rather than sovereign authority” (2004, p. 67).

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The observable fact of the protector’s power thus allows drawing two related

conclusions, which jointly satisfy the authorization condition: first, it shows that it would be

irrational for anyone not to consent to the protector’s authority; second, it is evidence that

at least the majority of people actually do consent to it. In this sense, for Hobbes, “might

implies consent, and consent confers right, therefore might implies right.”77 To put the point

more perspicuously, there are three senses in which might does make right: (i) It is a

necessary condition for any organized power to even count as a state that it be sufficiently

powerful to attempt to solve the problems of the state nature. Brute power is therefore a

necessary condition of statehood (and, a fortiori, of legitimacy). (ii) Furthermore, the

exercise of brute power can secure de jure authorization to coerce through fear. Because of

the striking weakness of the conditions of Hobbesian consent, power can induce its own

legitimation.78 (ii) Lastly, we should note that it is impossible for a state to be always

supervising every action of each citizen. Without a critical mass of subjects who obey the

state’s commands voluntarily (by Hobbes’s standard), without enough subjects simply

“going along” with the state’s commands, the state cannot be secure in its rule. To the extent

that the state does succeed in exercising widespread control over the population in its

territory, we can safely infer that most people have chosen to “go along” with its commands

most of the time. In this respect, “might” understood as successful domination is evidence of

“right” as Hobbesian consent. Because “might” has a normative character in Hobbes—it

77 Hoekstra 2004, p. 68.

78 This is not to say that power is self-legitimizing, which would literally equate “might” with “right.”
Hobbes needs the normative mediation of consent, but, as I explained in Chapter 2.3, he can only accommodate
it at the expense of a robust and satisfactory account of voluntariness. Hence, while his argument has the
appropriate structure, it fails to satisfy what Williams calls the “critical theory principle”: “the acceptance of a
justification does not count if the acceptance itself is produced by the coercive power which is supposedly being
justified” (2005, p.6).

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satisfies the effective protection condition and counts as evidence that the authorization

condition has been met as well—the very close connection between might and right still

stops short of constituting an automatic legitimation of the powers that be. Hobbes was not

a de facto theorist of the right to perform as a state.

I conclude, therefore, that the two conditions of Hobbesian legitimacy—authorization

and effective protection—are jointly sufficient and singly necessary for an agency (a

sovereign) to have the right to perform as a sate, with the resulting obligations of obedience

that fall on its subjects. Consequently, the “mutual relation” between protection and

obedience in Hobbes should be interpreted as a simple conditional: if I stand under a duty to

obey the state, then it must be the case that the state is indeed serving its protective function.

(By contract, the de facto theorists treated the “mutual relation” as a biconditional, doing

without the authorization condition altogether.) True to form, Hobbes is exceedingly careful

when he claims that “The end of obedience is protection” (L IXXI.21, emphasis added),

instead of saying that obedience begins with protection. For me to be bound to obey, I must

have also authorized the protector to act in my name—even if my authorization is only

attributed or inferred from the fact of my non-resistance or from the observed success of the

protector’s uncontested monopoly of force.

Finally, I should like to call attention to the fact that the right to perform as a state is

only minimally connected to the quality of the state’s performance in Hobbes’s theory.

Provided the state delivers on its promise to protect and provide assurance, whatever else it

does is irrelevant to its standing as an (il)legitimate authority. The dimension of legitimacy

is coextensive with what Hobbes calls “justice,” as opposed to the rules of equity captured by

the non-justiciable duties of sovereigns (see section 3.5). Whether a state is just or not in the

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more robust, contemporary sense of the word, has no bearing on its legitimacy on the

Hobbesian account.

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PART II. ROUSSEAU

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CHAPTER 4. FREEDOM AND CIVILIZATION

4.1 Fear of Unfreedom

If Bodin was the first theoretician of the modern idea of sovereignty, Hobbes must be

credited with having worked out the full range of its many (if troubling) implications through

his original and sophisticated theory of personation and authorization. While Hobbes

amended some of Bodin’s inconsistencies, especially concerning the relation between

sovereignty and property rights, he retained the fundamental idea that there can be no state

(and, he would add, no people properly speaking) in the absence of an actual sovereign with

boundless and undivided authority, an authority grounded in its role as the one and only

authorized personator of an incorporated people.1 Although Hobbes was clearly—and

consistently—a consent theorist of the state, the extreme minimalism of his account of

normative consent has led some interpreters to regard him as a de facto theorist of

legitimacy. However, narrow though the gap may be, Hobbes does not argue for a simple

equation of protective power (sovereignty de facto) and legitimate authority (sovereignty de

jure). In reality, the two come dangerously close, as the stability of a sovereign’s effective

1 I have spoken of the tension in Bodin’s account of property in Chapter 3.4. Rousseau takes notice of
Bodin’s requirement of the subject’s consent on taxes proposed by the sovereign, though he chooses
(strategically, it seems) not to point out the inconsistency in Bodin’s absolutism: “This truth, that taxes can be
established legitimately only by the consent of the people or its representatives, has been generally recognized
by all philosophers and jurisconsults who have achieved any reputation in matters of political right, not
excepting Bodin himself” (PE 59).

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monopoly over rule-making and its enforcement counts for him as a valid sign of actual,

underlying consent by its subjects. Even in the case of sovereignty by acquisition or

conquest, Hobbes remains committed to a contractualist account of legitimacy, as only

consent could turn the victory of a conqueror into the legitimate rule of a sovereign.

Still, critics have been right to insist that Hobbesian consent requires too little and

gives away too much. Agreement that can be exacted at sword-point can hardly invest the

sword-bearer with the normative attributes that consent properly understood is usually

taken to entail. This criticism aside, however, to the extent that we read Hobbes on his own

terms, it is not true that he reduced legitimacy entirely to the fact of brute power. Not only

is consent necessary; in addition, the powers that be must plausibly count as a solution to

the structural problems of the state of nature. Hobbes’s theory of legitimacy retains an

irreducibly normative dimension both at the level of consent and in terms of the kind of

power that can even aspire to sovereign status. This normative core is the conjunction of the

effective protection and the authorization conditions of legitimacy identified in Chapter 3.

The sovereign must be authorized and it must plausibly count as a solution to, as opposed to

being a part of, the maladies of the state of nature—instability, uncertainty, insecurity, and

war.

Hobbes’s theory was clearly tailored to the concerns that drove him to theorize about

politics. As he puts it in his verse autobiography, he was born along with fear (VL, lines 25-

28), and fear took the political form of civil war. He witnessed the calamities that come with

insecurity and instability and England’s turmoil forced him into exile. Hobbes is the arch-

risk averse, loss-terrified philosopher, and his theory is a clear reflection of that deeply-

seated disposition. A near-absolute duty of obedience to an absolute sovereign is the price

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we pay for the summum bonum of peace and stability, the very conditions of possibility of

“commodious living” (L XIII.14).

The contrast with Rousseau’s view of the central problem of politics is quite stark

indeed. If Hobbes was content to secure peace through submission to an absolute sovereign,

for Rousseau, “the fundamental maxim of all Political Right” was “that People gave

themselves Chiefs to defend their freedom, and not to enslave them” (SC III.38). Freedom,

not security, is Rousseau’s chief concern as a political theorist. Rousseau pressed this point

to such an extent that he even minimized the unmistakably Hobbesian terror of civil war,

claiming—somewhat provocatively—that “Riots, civil wars, greatly alarm chiefs, but they do

not cause the true miseries of peoples, which may even experience some respite during the

disputes about who will tyrannize them… A little agitation energizes souls, and what causes

the species truly to prosper is not so much peace as freedom” (SC III.9.4n). When Rousseau

indicts his European contemporaries for failing to value freedom as they should, one cannot

help noticing an indirect gloss on Hobbes’s politics: “you care more for your gain than for

your freedom, and you fear slavery less than you fear poverty” (SC III.15.9).

This is not to say that Rousseau was unconcerned with the problems of assurance,

peace, and stability. To be sure, “civil security” is one of the defining ends and commitments

of political society: “Private safety is so closely bound up with the public confederation that,

if it were not for the concessions that have to be made to human weakness, this convention

would by right be dissolved if a single citizen in the state perished who could have been

saved” (PE 31-32). Rousseau’s point is not, therefore, that Hobbesian fears are misguided or

unfounded; rather, the claim is that peace and security are only part of the constitutive

purpose of political association, and that they cannot override an even more fundamental

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commitment to freedom. Rousseau of course believed that a political society that satisfied

the demands of freedom was also capable of solving the Hobbesian problems, but

maximizing the prospects of ever-lasting peace must take a backseat to living up to the

demands of freedom.

In a way, Rousseau’s defense of the normative priority of freedom is a concession to

Hobbes. If peace was all that mattered, then surely the Hobbesian solution would be the best

one could hope for, or at any rate the most stable and effective option on the table. But

Hobbes’s optimal institutional arrangements for avoiding civil war and instability were, by

Rousseau’s lights, incompatible with a genuine commitment to freedom. Hence his warning

about the aims of political reform in Poland: “They would like to combine the peace of

despotism with the sweetness of freedom. I am afraid they want things that are

contradictory. Repose and freedom seem to me incompatible; one has to choose [Le repose

et la libertè me paraissent incompatibles; il faut opter]” (GP 1.3). Though Rousseau overstates

the point, presenting it here as a dilemma between freedom and peace, what he means to say

is that social arrangements that maximize the long-term stability of peace are inconsistent

with the demands of individual freedom. The problem with “enslaved Peoples” who “do

nothing but incessantly boast of the peace and quiet they enjoy in their chains,” is not that

they are wrong to “call the most miserable servitude peace” (SD II.39). The deeper problem

is that they have no appreciation for what they have given up in exchange for it. For “it is as

true of freedom as it is of innocence and virtue that one appreciates their worth as long as

one enjoys them oneself, and loses the taste for them as soon as they are lost” (SD II.38). The

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tragedy of a people that has purchased peace and prosperity at the price of freedom is that

they will come to be content with their lot.2

To put the point differently, Rousseau’s approach to the problem of political life

resembles a case of constrained maximization. The ideal state is one capable of maximizing

peace and personal security within the constraints imposed by the demands of individual

freedom. This much is clear from Rousseau’s own phrasing of the “fundamental problem to

which the social contract provides the solution”: “To find a form of association that will

defend and protect the person and goods of each associate with the full common force, and

by means of which end, uniting with all, nevertheless obey only himself and remain as free

as before” (SC I.6.4). For Rousseau, there is little merit in solving the problem of peace and

security without regard for the demands of freedom. The Hobbesian state can certainly keep

social and political instability in check, but it cannot—nor does it even claim to—leave

people “as free as before.”3 Rousseau wanted to show that it was possible to do better than

that. “The despot, it will be said, guarantees civil tranquility for his subjects,” but “Life is also

2 Rousseau very clearly understood the phenomenon of adaptive preferences. This passage alone hints
at most of the defining features of adaptive preference-formation: it “differs from learning in that it is
reversible; from precommitment in that it is an effect and not a cause of a restricted feasible set; from
manipulation in that it is endogenous; from character planning in that it is causal; and from wishful thinking in
that it concerns the evaluation rather than the perception of the situation” (Elster 1982, p. 226).
For Rousseau, “enslaved” peoples are unfree even if they do not see themselves as such. This is important
because it highlights that the kind of freedom that matters to Rousseau has a fundamentally objective basis, as
I explain in section 4.3.
3 Admittedly, the very idea that people could be “as free as before” when they join a political community
would have been nonsense for Hobbes. Because Hobbes conceived of freedom only as non-interference, any
constraint, including law, was detrimental to individual freedom. “[L]iberty in the proper sense” just is
“corporal liberty (that is to say, freedom from [literal] chains and prison)” (L XXI.6; cf. also L XXI.1);
consequently, the extent of a subject’s liberty equals the entirety of the option-set that excludes actions
forbidden by law (“As for other liberties, they depend on the silence of the laws,” L XXI.18). Since civil life just
is life regulated by civil law, it follows that there is always, inevitably, a loss of freedom when someone joins
political society as compared with the condition of natural liberty in the state of nature.
For a discussion of the novelty of Hobbes’s notion of freedom as mere non-interference, see Skinner
1998 (esp. pp. 5-10, 59-60); and for a helpful analysis of the consistency of Hobbes’s commitment to that notion,
see Pettit 2012. Although I do not explicitly discuss it, the contrast between Hobbes’s and Rousseau’s
conceptions of freedom will become clear in light of the arguments in section 4.3.

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tranquil in dungeons” (SC I.4.3). The “tranquility of the state under despotism… is the

tranquility of death. It is more destructive than war itself” (E IV, p. 312n).4

Rousseau’s project is premised on a specific ideal of individual freedom that is

particularly difficult to realize in the modern world. In section 4.2, I delve into Rousseau’s

conjectural history of the human species to explain both his psychological assumptions

about human nature and the reasons why freedom is so elusive in a world of pervasive

personal interdependence. Rousseau’s deeply critical assessment of the state of human

civilization sets the background for his constructive political proposals; it explains both the

difficulty and the possibility of equal freedom in the modern world. But what does “freedom”

mean for Rousseau? I take on this crucial question in section 4.3, where I argue for a

republican account of Rousseau’s conception of political freedom, in opposition to the “social

autonomy” interpretation of Rousseauian freedom.

In my view, Rousseau’s distinction between “civil” and “moral” freedom should be

taken seriously, and the political theory of The Social Contract is best understood as working

out the requirements for the realization of “civil” freedom or the ideal of non-domination.

The Social Contract is about how our common institutions can make it possible for everyone

to enjoy protection from every other person’s arbitrary power of interference. Based on this

republican reading of Rousseau’s ideal of political freedom, section 4.4 frames the problem

4 On my interpretation of Rousseau’s project, the claim that his “political thought was concerned with
problems of a fundamentally Hobbesian nature” (Douglass 2015, p.106) does not do justice to the salience of
his commitment to a particularly demanding conception of freedom and his awareness of the ways in which
that commitment can conflict with a single-minded interest in peace and stability (to be fair, Douglass seems
to take that statement back in pp. 145-146). Rousseau’s “fundamental problem” encompasses, but also extends
far beyond, Hobbes’s. For this reason, I also disagree with Steinberger’s contention that “The loss of moral
liberty is an important and essential by-product of this [i.e. of a state turning against its citizens], but a by-
product nonetheless” (2008, p. 609). As I read Rousseau, the failure to guarantee citizens’ civil freedom (which
Steinberger misleadingly calls “moral liberty”), far from being a mere “by-product,” is the defining defect of an
illegitimate and dysfunctional state and, indeed, of a stateless condition.

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to which the Republic of the General Will is a solution—namely, making civil freedom

consistent with social interdependence without recourse to political domination.

To affirm the salience of freedom in Rousseau’s thought is not to deny that there are

other important values that shape his political project as well. Notably, Rousseau appears to

be just as committed to the idea of equality: “If one inquires into precisely what the greatest

good of all consists in… one will find that it comes down to these two principal objects,

freedom and equality” (SC II.11.1). But as he goes on to explain in that same passage, the

value of equality is important only because of its instrumental relation to freedom: equality

matters “because freedom cannot subsist without it.”5 (Of course, Rousseau’s commitment

to freedom is itself egalitarian in character: he is interested in the possibility of equal

freedom for all citizens in a political community.) There is also in Rousseau a deep concern

with overcoming the social causes of self-alienation and a corresponding aspiration to meet

“the psychic needs of men for inner unity and social simplicity.”6 This idea also plays a role

5 The textual evidence for the instrumental value of equality is particularly clear in the Social Contract,
but the same view is already present in Rousseau’s Second Discourse. In his insightful study of that text,
Frederick Neuhouser makes a compelling case for the idea that “Rousseau’s critique of inequality, above all of
economic inequality, focuses on its pernicious consequences for human beings”; it is, as he puts it, an
“instrumentalist” critique (2014, p. 168). On Neuhouser’s reading of the Second Discourse, the (il)legitimacy of
social inequalities is a function of how they affect people’s (intrinsically valuable) freedom and well-being (pp.
2, 12, 100-102, 115, 198). For a similarly “instrumentalist” reading of Rousseau’s worries about inequality, see
Cohen 2010, pp. 140, 155, 164, and for a seemingly dissenting view see Dent 2005, p. 157.
6 Shklar 1969, p. 5; see also Neuhouser 2014, pp. 184-185. Shklar goes farther than this and takes
psychic integration, or overcoming self-alienation, to be the ultimate achievement of Rousseau’s political ideal:
“It is not social cohesion as an end in itself. The end is the unity within each man. Social peace is merely the
reflection of that inner harmony which had marked natural men in contrast to the civilized” (p. 167). A similar
argument is made by Yonah (1997), for whom Rousseau’s chief concern is “person well-being”; he strikes a
similar note as Shklar’s in emphasizing the importance of “personal and political harmony” (pp. 293-294).
I believe this approach overstates the role of “harmony” or “integration” in Rousseau’s thought,
especially his political theory. Rousseau does require some degree of psychic integration so that citizens can
will the general will and support the institutions that actualize it. Otherwise, the legitimate society would not
be motivationally possible for human beings or stable in the long-run. Full psychic integration is no doubt an
important ideal for Rousseau (especially in the context of Émile), but I do not think it is a condition of political
legitimacy as such. The state does not have to take on the all-encompassing therapeutic role of Julie’s Wolmar
as an “image of authority,” as Shklar suggests (pp. 134-135, 140-144, 150-154) and Yonah explicitly contends
when he defines Rousseau’s project as “basically ‘therapeutic’” (1997, p. 296).

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in Rousseau’s theory of legitimacy, but the achievement of psychological integration is

largely subsumed under his conception of freedom. The relevant point is that most of the

normative commitments that guide Rousseau’s social theory can still be accounted for by

focusing on the central justificatory role of freedom. As I will argue, a political community

that lives up to the ideal of freedom will be one whose citizens enjoy substantive equality

and are also likely to have overcome self-alienation; indeed, the stability of such a society

will largely depend on the extent to which its citizens can live in it without experiencing inner

conflict and self-alienation.

4.2 The State of Civilization

I argued in Chapter 1 that Hobbes’s theory of legitimacy is best understood against

the background of his conception of the state of nature, as the former is an answer to the

problems posed by the latter. Only by grasping what it is like to live without a state can one

appreciate the force of Hobbes’s argument for the rationality of political incorporation and

his justification for the distinctive features of what he takes to be the only possible solution

to the problem of assurance—a single, indivisible, and absolute sovereign. The state of

nature very clearly is the normative baseline for Hobbes’s justification for the existence of

the state as well as the point of departure for his account of what constitutes the right to

perform as a state.

Things are not so clear with Rousseau. Although he appealed to the idea of the state

of nature in his political theory, his conception thereof is significantly more nuanced than

Hobbes’s. In fact, the role of the idea of the state of nature in Rousseau’s thought is not

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entirely obvious. While Hobbes thought of the state of nature as an ever-present possibility

to which state collapse would invariably lead, Rousseau took it to be an irretrievable stage

of human life no longer accessible to us, for better or worse.7 In order to understand what

exactly is the role of the state of nature in his thought, we must turn first to Rousseau’s

philosophical anthropology and his conjectural history of the human species.

Unlike Hobbesian “natural” man, whose primary concern is the rational pursuit of

self-preservation, Rousseau’s is endowed with two basic motivational drives and two innate

capacities. The two drives are amour de soi and compassion (pitié). “[O]ne interests us

intensely in our well-being and our self-preservation” while “the other inspires in us a

natural repugnance to seeing any sentient Being, and especially any being like ourselves,

perish or suffer” (SD Preface 9). These “principles prior to reason”8 make it “unnecessary to

introduce into [our mind] that of sociability” (ibid.). Sociability proper is explained as an

emergent disposition resulting from both circumstances of interdependence and

compassion as the psychological source of other-regarding motives (“from this single

7 As will become apparent, I do not think that Rousseau’s political project sought “to regain, to recapture
what is for him the original innocent state of nature” (Berlin 2002 [1952], p. 40). The “primitivist” reading of
Rousseau was effectively refuted by Arthur Lovejoy (1923). For other compelling statements of the anti-
primitivist reading I favor, see Crocker 1960 (p. 36), Dent 2005 (p. 41) and Neuhouser 2014 (pp. 70, 143-144).
8 The fact that amour de soi and compassion are “prior” to reason confirms that, for Rousseau, practical
rationality has an eminently instrumental character. Rather than setting the ends of action, it contributes
principles of choice and rules of expediency for agents to structure and act on their set of contingently given
desires, all of which are in the last analysis expressions of amour de soi and compassion in some form or other.
Practical reason can shape one’s desires and their priority, but it cannot take their place as a source of motives
in its own right: “Regardless of what the Moralists may say about it, the human understanding owes much to
the Passions which, as is commonly admitted, also owe much to it: It is by their activity that our reason perfects
itself; We seek to know only because we desire to enjoy, and it is not possible to conceive why someone who
had neither desires nor fears would take the trouble to reason” (SD I.19). Almost channeling Hume, Rousseau
at one point declares that “In vain does tranquil reason make us approve or criticize; it is only passion which
makes us act” (E III, p. 183; cf. also E IV, p. 323). While Rousseau might allow that “under the right conditions,
our natural moral sentiments will be guided by our reason” (Stilz 2009, pp. 119-120), one must be careful not
to attribute too Kantian or rationalistic a moral psychology to him (as does. Kaufman 1997, pp. 33-43).

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attribute flow all the social virtues,” SC I.37).9 Though not inherently sociable, every human

being is endowed with a form of empathy that “tempers his ardor for well-being with an

innate repugnance to see his kind suffer” (SD I.45), and this feature of human psychology

makes every human being amenable to becoming social. In large measure due to the innate

motive of compassion, and contrary to what Hobbes believed, Rousseauian “individuals are

enemies only by accident, not as men, nor even as citizens” (SC I.4.9).

In addition to these two drives, humans have the all-important capacity of free will.

Freedom—the ability to choose for oneself—“is man’s noblest faculty” (SD II.41), what

makes human beings unique in the realm of nature: “Nature alone does everything in the

operations of the Beast, whereas man contributes to his operations in his capacity as a free

agent. The one chooses or rejects by instinct, the other by an act of freedom… the will

continues to speak when Nature is silent” (SD I.15). Freedom is what makes human beings

accountable and responsible for their deeds.10 Alongside freedom “there is another very

9 Rousseau confirms the emergent character of sociability elsewhere, e.g.: “it is at least clear, from how
little care Nature has taken to bring Men together through mutual needs and to facilitate their use of speech,
how little it prepared their Sociability, and how little of its own it has contributed to all that men have done to
establish its bonds” (SC I.33). Neuhouser is right to argue that “Rousseau’s most important reason for rejecting
sociability appears to be that it encloses too much of the social within the realm of the natural” (2015, p. 52).
Indeed, Rousseau was keen to argue against his natural law and contractualist predecessors (Grotius,
Barbeyrac, and Hobbes) that their ideas of “natural man” were already packed with “desires that… are cultural
and historical products,” not part of human beings’ natural endowments (ibid.; cf. also pp. 69, 77). (On this
score, Rousseau was actually being unfair to Hobbes, as Hobbes had already argued that sociability is an
artificial, not natural, drive: “I deny that men (even nature compelling) desire to come together… Wherefore
man is made fit for society not by nature, but by education. Furthermore, although man were born in such a
condition as to desire it, it follows not that he therefore were born fit to enter into it” (DCv I.2n.)
Though human beings are not possessed of an inherent drive towards sociability, the full realization
of their nature does depend, for Rousseau, on their living along others in society: “in my view society is as
natural to mankind as decrepitude is to the individual… The only difference is that old age is a stage that follows
from the nature of humankind not, as you maintain, immediately, but only, as I have proved, with the help of
external circumstances which might have been or not been, or might at least have occurred sooner or later, and
hence speeded up or slowed down the progress” (LP 9).
10 For Rousseau, free will is a built-in feature of the human psyche. As such, free will is not something
people achieve: it just is an innate capacity. It is therefore important to distinguish free will in this sense from
(normative) freedom. To say, for example, that the “state plays an indispensable role in constituting human

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specific property that distinguishes” human beings: “the faculty of perfecting oneself; a

faculty which, with the aid of circumstances, successively develops all others” (SD I.17).

What Rousseau seems to have in mind is that the power of rational choice enables human

beings to shape themselves in various ways: a person can make “habits a permanent feature

of his character” in a way that transcends the immediate urgings of natural instinct.11

Humans can consciously neglect or cultivate their natural propensities, and they can acquire

or develop new skills and abilities. What links perfectibility to rationality is the fact that we

can only perfect ourselves after having acquired language, as “perfectibility depends” on

“general ideas” that “can enter the Mind only with the help of words” (SD I.30). But since

language is a socially developed institution and therefore an acquired capacity, perfectibility

only begins to operate once human beings have come to live in society with others. In a

sense, rather than the mark of individual persons, “the faculty of perfecting itself… is the

specific characteristic of the human species” (SD I.18nX.5, emphasis added).12 Just as

language allows individuals to think in general ideas and cultivate their abilities, so it serves

as a repository of knowledge allowing future generations to perfect themselves building

beings are bearers of free will” (Neuhouser 1993, p. 365) is to mistake “free will” as an innate capacity for
(normative) freedom as a socio-political achievement.
11 Wokler 1995, p. 44. I am inclined to think that perfectibility is strictly speaking an expression of free
will, and so not really a second, distinct capacity, but I treat them as such only because Rousseau tends to do so
in the Second Discourse. In any event, nothing of theoretical significance depends on this minor issue.
12 In his extensive analysis of the Second Discourse, Neuhouser explains that the “general point” of
perfectibility is “that the human species, in contrast to all other animal species, is highly malleable in the sense
that social and historical circumstances are able to transform it in numerous and fundamental ways” (2014, pp.
45). This is certainly true, but I think it misses a critical dimension of Rousseau’s idea of perfectibility—namely,
that the development (or shaping) of the human species can itself be an intentional, conscious end of human
action. Neuhouser of course acknowledges that perfectibility is connected to free will, but he misses the
strength of the connection in arguing that “the development [of perfectibility] itself is not willed (consciously
intended) by the being that undergoes it but is an unintended consequence of freely chosen actions directed at
other ends” (op. cit., p. 51). Neuhouser is right to insist that perfectibility can take place without intentional or
conscious adoption of a development goal by any human agent, but he is wrong to deny the distinctively human
power to make the species’ developmental trajectory an object of intentional control and intervention. As I
interpret it, perfectibility is more deeply related to free agency than Neuhouser takes it to be.

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upon what others have done before. Every generation of the human species is spared having

to invent the wheel anew. In other words, the human species alone has a history.13

Having this capacity to perfect themselves does not by itself explain why human

begins actually exercise it, especially considering that “To do nothing is man’s primary and

strongest passion after that of self-preservation” (OL IX.22n). The only thing that could ever

motivate an agent to do anything, let alone perfect himself, is some sort of unsatisfied want:

“Human industry expands with the needs that give rise to it” (OL IX.18). It is only the

emergence of a gap between one’s needs and one’s ability to satisfy them single-handedly

that ignites the process of perfecting oneself and the species. Crucially, this gap only appears,

and continually widens, with socialization because living alongside others enlarges the set

of needs associated with survival, reproduction, and material well-being, and introduces an

entirely new set of psychological needs which cannot, as matter of definition, be met by the

individual in isolation.14

The logic of expanding material needs is straight-forward. Even by accident, or

perhaps for convenience, humans rapidly acquire a taste for goods that may not be strictly

necessary for survival, but over time they come to be perceived as, and so become, genuine

needs. For instance, “he who first made himself clothes or a Dwelling thereby provided

himself with things that are not very necessary, since he had done without them until then”

13 By contrast, in the state of nature, “The art perished with the inventor; there was neither education
nor progress, generations multiplied uselessly; and as each one of them always started at the same point,
Centuries went by in all the crudeness of the first ages” (SD I.46). Hence Rousseau’s view that human progress
generally, not just individual improvement, manifests the faculty of perfectibility: “Conventional language
belongs to man alone. This is why man makes progress in good as well as in evil, and why animals do not” (OL
I.14). On perfectibility as a residing in the species as a whole, see Rawls 2007, pp. 197-198; on perfectibility in
relation to history, see Ryan 2012 [1973], p. 229.
14 In what follows I draw on Neuhouser’s (1993) helpful analysis of the distinction between “economic”
and “psychological” or “psycho-moral” dependence (pp. 374-379), especially regarding the ways in which the
acquired psychological needs of socialized human beings tend to increase economic dependence.

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(SC I.12). And yet “To go naked, to be without habitation” is for us a form of unmistakable

material deprivation; these are biologically “useless things” that we nevertheless “believe so

necessary” (ibid.). Rousseau’s more insightful observations concerns the genesis of

psychological needs. As individuals are socialized, they acquire the use of language; and this

in turn molds the demands of amour de soi by introducing self-conceptions and the desire

for positional goods.15 Words allow us to think in general ideas and concepts; and through

general ideas, we for the first time have conceptions of ourselves properly speaking,

conceptions that are very often tied to our relative standing in society.16 Pre-linguistic amour

de soi involves “the sole sentiment of [one’s] present existence, with no idea of the future,

however near it may be, and [one’s] projects, as limited as [ one’s] views, hardly extend the

close of day” (SD I.21). But as foresight enters the mind of human beings (and along with it

“the knowledge of death, and of its terror,” SD I.19), there is a shift from a mere sense of self

to a conception of oneself that projects into the future and so to a regulative idea of personal

well-being properly speaking. Moreover, since language and thought are inextricable from

the ability and inclination to compare (“Reflection is born of the comparison of ideas,” OL

15 In arguing that self-conceptions and the desire for positional goods are socially acquired features of
human psychology that depended on the mind-shaping effects of language, Rousseau took himself to be scoring
a point against Hobbes’s idea “natural” human beings (see p. 168n9). But there are good reasons to think that
Rousseau misread Hobbes on this issue: First, Hobbes agrees that language is a human artifice, a social
convention (“speech could not have had a natural origin except by the will of man himself,” DH X.2); he also
concedes that the human capacity to understand things by drawing comparisons depends on the use of
language (“That understanding which is peculiar to man is the understanding not only his will, but his
conceptions and thoughts, by the sequel and contexture of the names of things,” L II.10). Since comparisons
depend on language, any desire for a positional good and the desire for “eminence” in particular cannot exist
unless people are already in possession of language (Pettit 2008a, pp. 92-7). The Hobbesian state of nature as
I characterized it in Chapter 1.2 is therefore a social state in which human psychology has already been shaped
by language. Thus, although “Rousseau presents his account of the state of nature as an alternative to that of
Hobbes,… there need be no disagreement between them” (ibid.): both argue that only socialized human beings
can have comparative self-conceptions of the sort presupposed by “eminence” as well as amour-propre.
16 One can hardly exaggerate the extent to which mindedness depends on language for Rousseau: “Minds
are formed by languages; the thoughts take on the color of the idioms. Only reason is common; in each language
the mind has its articular form” (E II p. 109).

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IX.3), our self-conceptions also inevitably involve an interest in our relative standing. When

Rousseau says that amour de soi encompasses both the interest in self-preservation and the

concern with one’s well-being, he is describing the self-regarding drives of human beings

already socialized into the world of language and interpersonal comparisons.

Amour de soi begins, then, merely with the “sentiment of [one’s] present existence,”

then enlarges into self-conceptions projected into the future, and thus comes to include an

interest in one’s well-being. Finally, as humans begin to live in larger social groups and the

power of rational reflection is fully developed, the sense of self becomes increasingly

complex. We come to form self-conceptions that reflect the value we ascribe to ourselves by

comparison with others; but these self-conceptions can only be sustained and confirmed (or

falsified) through other people’s recognition of our standing (or their withholding of such

recognition). This longing for recognition by others of the validity of our self-conceptions is

what Rousseau calls amour propre, the expression of amour de soi among fully socialized

human beings: “Amour propre is only a relative sentiment… and is the genuine source of

honor” (SD I.35nXV.1). It is in this way that we develop psychological needs for other

people’s acknowledgement of our worth. And these needs bear the indelible mark of

personal dependence, for they can only be met by other people’s choice to confer or withhold

their (in)validating recognition.17

17 This is what Neuhouser calls the “double relativity” of amour propre: “the good that amour propre leads
us to seek requires, even consists in, certain relations to others” (i.e. it is a positional good) and it “depends on,
even consists in, the judgments or opinions of others” (2014, pp. 67, 69). The satisfaction of my amour propre
depends on other people in that (i) my value is a function of how I stand in society in relation to them and (ii)
my standing in society is a function of what they think about my value. The second dimension of amour propre’s
relativity explains why “it often seems that humans seek power over others as an end in itself,” for “being the
master of others’ wills is one way to find confirmation of one’s higher status in the eyes of both those who are
dominated and those who see that domination” (op. cit., p. 183). The problem with such animus dominandi is
that it is still a form of dependence on other people’s opinion: “Even domination is servile when it is connected

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Rousseau draws on all these elements of his philosophical anthropology—amour de

soi, compassion, rationality, language, perfectibility, and amour propre—to argue for the

striking claim that “Men are wicked… yet man is naturally good” (SD I.17nIX.2). As I

understand it, this brief statement actually encompasses three related but distinct theses:

first, that human beings are good by nature; second, that natural goodness is consistent with

widespread vice and moral corruption; and third, that the philosophical relevance of the idea

of the “state of nature” has been seriously misconstrued by most contractualist theorists,

particularly by Hobbes. “The Philosophers who have examined the foundations of society

have all felt the necessity of going back as far as the state of Nature, but none of them has

reached it” (SD Exordium 5).18

Rousseau’s natural goodness thesis is one of his most provocative and polemical

views, perhaps because it invites facile caricaturizing. To understand what Rousseau meant,

the first thing to notice is that “man” and “good” are ambiguous terms in this context. “Man,”

for Rousseau, can refer to the typical human being in any one of three discrete stages of the

species’ cultural evolution, “of man considered in relation to society” (OL IX.19). The first

stage is that of the “savage,” the human being who lives as a hunter (SD II.6) and engages

with opinion, for you depend on the prejudices of those you govern by prejudice. To lead them as you please,
you must conduct yourself as they please” (E II, p. 83).
Since the satisfaction of amour-propre is inherently tied to what other people think, personal
dependence cannot be eradicated from social life except by erasing amour-propre from the human psyche
altogether, which Rousseau clearly thought both undesirable and virtually impossible. We can only hope to re-
structure, not eliminate, personal dependence (Neuhouser 1996, pp. 487-488). More importantly, the key to
meeting the powerful and engrained needs of amour propre lies in a more egalitarian form of socialization: “the
central demand of amour-propre, to receive our due recognition and respect from other people, is capable of
being met provided we are clear about what is our due from others—not servility and fawning adulation but a
position among men of common regard and common respect, recognising our equality as humans” (Dent 2005,
p. 105). Only in this way can the demands of each person’s amour-propre “be met consistently with those of
each and every other person” (ibid; cf. also Rawls 2001, pp. 198-199). What Ripstein says about Hegel applies
equally to Rousseau: “whatever social problems recognition might generate, they can only be solved by further
socialization” (1994, p. 447).
18 See p. 171n15 for some reasons to think that this is not true of Hobbes, pace Rousseau.

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only in the “purely animal act[s]” (SC II.2) of self-preservation and reproduction; the savage

merely follows “blind inclination” (SC II.2) and his intellectual development reaches no

further than the “perceptions of certain relations” (SD II.5) or regularities in the natural

environment, just what is needed to succeed as a hunter-gatherer. Next, as the savage begins

to identify other creatures like himself (SD II.7), he learns to form “some kind of free

association” for mutual advantage (SD II.8), but only in the short-term, as “foresight was

nothing to them” (SD II.9). The savage’s temporary association with others is not yet a social

condition of life and language has not even developed, as a band of hunter-gatherers “did not

require a language much more refined than that of Crows or Monkeys” (SD II.10). The savage

is “man stripped of all socially acquired habits, desires, and morality, in short, man as raw

self, as Id.”19

This incipient form of cooperation only becomes a settled feature of human life with

the “first revolution” of the “establishment and differentiation of families” and the

introduction of “a sort of property” (SD II.11). This is the point of inflection that turns the

savage into a barbarian. With family life comes love, the first genuine other-regarding

motive that builds on compassion, though it goes beyond a negative concern for the suffering

of others and involves a positive interest in their well-being (SD II.12). The barbaric stage of

the species represents the beginning of human history because it enlarges human needs and

so stimulates the exercise of the faculty of perfectibility. With pastoral sedentariness, “men

enjoyed a great deal of leisure which they used to acquire several sorts of conveniences

unknown to their Fathers; and this was the first yoke which, without thinking it, they

imposed on themselves,” as these conveniences “degenerated into true needs” (SD II.13).

19 Wolin 2006, p. 331.

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Along with this expansion of economic needs, the barbarian is the first to develop a sense of

amour propre: as member of a family, he develops a need for his kin’s recognition of his

worth. This is Rousseau’s “yoke”: to be irreducibly dependent on others for the satisfaction

one’s economic and psychological needs.20 But at this point the extent and effects of

dependency are contained enough that Rousseau can still hold that “this state was the least

subject to revolutions, the best for man” (SD II.18).

As family clans grow and come to live alongside others, this idyllic pastoral life of

familial love is radically transformed. Love is no longer the sole bond holding the social

group together, and “imperceptibly they acquire ideas of merit and of beauty which produce

sentiments of preference… jealousy awakens together with love” (SD II.15). Amour propre

ceases to be circumscribed to the loving recognition of one’s kin, and begins to morph into a

desire for preeminence in a larger social group. 21 “Everyone began to look at everyone else

20 Wolin misses the point Rousseau is trying to make when he defines the tragedy of social man thus: “he
destroyed the balance between needs and desires: what he needs he does not desire, and what he desires he
does not need” (2004, p. 331). The gap that worries Rousseau is not between what I biologically need and what
I actually desire, but between what I need and what I can provide for without making myself dependent on
others. Of course, the problem of personal dependence only arises because my needs have expanded well
beyond the bare minimum for subsistence, beyond what I can self-sufficiently procure. But the heart of the
problem is dependency, not the fact that I have more needs than I “should” from a strictly biological point of
view.
21 Neuhouser’s reconstruction of the Second Discourse explains particularly well how love and sexual
passion contribute to the emergence of competitive amour propre. According to Neuhouser, human beings first
develop a sense of species-pride as bands of hunter-gatherers come to appreciate their common human
superiority over the natural world (and over other species of animals in particular); but it is only “sexual love”
that for the first time reveals to them that “individuals might also stand in relations of superiority or inferiority
to other individuals of the same species” (2014, p. 87).
The best evidence for this account comes from Emile, where Rousseau draws the most explicit
connection between sexual love and amour propre: “Love must be reciprocal. To be loved, one has to make
oneself lovable. To be preferred, one has to make oneself more lovable than another, more lovable than every
other, at least in the eyes of the beloved subject. This is the source of the first glances at one’s fellows; this is
the source of the first comparisons with them” (E IV, p. 214). It is with good reason that Bloom claims that
“sexual passion” is Rousseau’s “solution” to the problem of finding a “selfish natural passion that can somehow
be used as the basis for a genuine…concern for others,” as an artificial substitute for the natural sociability of
the Stoics and natural law theorists (1979, p. 15; cf. also p. 168n9). The paradox is that amour propre tends to
be both a social bond and a source of discord—it is, we might say with Kant, a form of “unsocial sociability”
(IUH 8:20-22, MM 6:471).

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and to wish to be looked at himself, and public esteem acquired a price… this was the first

step at once toward inequality and vice” (SD II.16). There is also a parallel economic change:

with the expansion of material needs, “one man needed the help of another” and as a result

“equality disappeared, property appeared, work became necessary” (SD II.19). With the

institution of private property needed for metallurgy and agriculture (SD II.22), the division

of labor becomes a permanent feature of society and, more importantly, one’s economic

status becomes a proxy for social standing. The division of labor and private property jointly

amplify the social effects of natural inequalities of talent (SD II.25, FD II.53), and in this way

“Physical causes… acquired various good or bad qualities that were not inherent in their

Nature” (SD Preface 3). That is, factual, physical inequalities come to have a normative

dimension: they become “moral, or political inequality” (SD Exordium 2), evidence of one’s

relative standing in society. This has an extraordinary effect on our psychological needs, as

the kind of external validation sought by our amour propre becomes tied to economic status.

To be recognized as valuable becomes hardly distinguishable from wealth. Thus, inequality

changes amour propre and the latter in turn reinforces the former.22 This is the life

characteristic of the current stage of the human species, the life of civilized, political human

beings immersed in a social world structured by relations of property and justice, by socially

sanctioned inequalities, and hence increasingly alienated from self and others. “To be and to

appear became two entirely different things, and from this distinction arose ostentatious

display, deceitful cunning, and all the vices that follow in their wake. Looked at in another

way, man, who had previously been free and independent, is now so to speak subjugated by

22 This point is well put by Neuhouser: the needs of amour propre “also play an important, perhaps
dominant, role in the constitution of economic dependence” as amour propre shapes the “conception of the
minimal standard of living” (1993, p. 379; cf. also Neuhouser 2014, pp. 178-179).

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a multitude of new needs to the whole of Nature, and especially to those of his kind, whose

slave he in a sense becomes even by becoming his master” (SD II.27).23 Competition, rivalry,

conflicts of interest (SD II.27)—“from this began to arise, according to the different

characters of the poor and the rich, domination and servitude, or violence and plunder” (SD

II.28).

It is the life of civilized human biengs that most closely resembles the “proud, selfish,

competitive” Hobbesian individual in the state of nature;24 “He will be good neither for

himself nor for others. He will be one of these men of our days a Frenchman, an Englishman,

a bourgeois. He will be nothing” (E I, p. 40). What is most concerning for Rousseau is that

conditions of severe inequality, given our economic and psychological interdependence (or

non-autarky), ultimately manifest themselves in relations of domination, of becoming

dependent on the will of others. This pattern of social interaction is most clearly visible in

the erection of the state as an instrument of class domination by the rich against the poor

(SD II.30-31). As they “ran to their chains in the belief that they were securing their freedom”

(SD II.32), civilized individuals “irreversibly destroyed natural freedom, forever fixed the

Law of property and inequality, transformed a skillful usurpation into an irrevocable right,

and for the profit of a few ambitious men henceforth subjugated the whole of Mankind to

labor, service, and misery” (SD II.33).

To return to Rousseau’s natural goodness thesis: the “man” who is naturally good is

neither civilized man nor the barbarian. Rather, it is the “natural” man, the pre-social (hence

23 Ryan nicely explains how the roots of self-alienation are to be located in this series of transformations:
“Civilization is a condition in which we lose touch with ourselves. We put on masks… What haunted Rousseau
was the fear that there might be no real self behind the several masks we wear” (2012 [1973], p. 230).
24 Ryan 2012 [1973], p. 229-230. Notice, however, that the innate drive of compassion already indicates
that Rousseau’s social theory is not premised on “the lowest common denominator of human motivation,”
unlike Hobbes’s (Berns 1987 [1963], p. 413). I discussed this idea in Chapter 1.2.

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pre-linguistic and, a fortiori, pre-political) savage who has hardly risen above the level of

animal instinct. The natural goodness thesis is, thus, a claim about the “pure state of Nature”

(SD Exordium 5), before the transformative effects of perfectibility had made themselves felt.

This in turn explains what “goodness” means for Rousseau in this context. To say that the

savage was naturally “good” is not to say that he was virtuous.25 He had neither the occasion

nor the required cognitive abilities to be virtuous: “All knowledge requiring reflection, all

Knowledge acquired only from chains of ideas and perfected only successively, seems to be

altogether beyond the reach of Savage man for want of communication with his kind” (SD

I.5nVI.1). But the fact that natural man “has no idea of goodness” does not mean that he is

“naturally wicked”; it is a mistake to think “that he is vicious because he does not know

virtue” (SD I.35) when in truth “There is no original perversity in the human heart” (E I, p.

25 The contrast between goodness and virtue is most clearly stated in Jean-Jacques’s only direct address
to Emile: “My child, there is no happiness without courage nor virtue without struggle. The word virtue comes
from strength… Raising you in all the simplicity of nature, I have not preached painful duties to you but instead
have protected you from the vices that make these duties painful… I have made you good rather than virtuous.
But he who is only good remains so only as long as he takes pleasure in being so. Goodness is broken and
perishes under the impact of the human passions. The man who is only good is only good for himself” (E V, p.
444, emphasis added). In this very important passage, Rousseau clearly indicates that virtue is only possible
once it becomes difficult to do what is good. Merit only attaches to virtue because of the strength it requires,
that is, because the agent is aware of the vicious alternative and deliberately resists it: “The supreme enjoyment
is in satisfaction with oneself; it is in order to deserve this satisfaction that we are placed on earth and endowed
with freedom, that we are tempted by passion and restrained by conscience” (E IV, p. 281).
Since the savage does not act in deliberate awareness of the alternatives, and his deeds are completely
effortless (from a moral-psychological point of view), Rousseau’s ascription of “natural goodness” is not much
by way of praise. The savage is exactly like the young Emile: “Devoid of all morality in his actions, he can do
nothing which is morally bad and which merits either punishment or reprimand” (E II, p. 92; on Emile as
“natural man living in the state of society” or “a savage made to inhabit cities,” see E III, p 205, and IV, pp. 255,
293). Rousseau is therefore perfectly consistent in placing the virtuous person’s merit above that of the other
class of beings who can be said to be “naturally good,” namely angels: “If man’s mind had remained free and
pure… [h]e would have remained happy, it is true. But his happiness would be lacking the most sublime degree,
the glory of virtue and the good witness of oneself. He would be only [!] like the angels, and doubtless the
virtuous man will be more than they are” (E IV, p. 292).

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92). Rousseau’s natural “goodness” is rather a kind of moral innocence: “Savages are not

wicked precisely because they do not know what it is to be good” (ibid.).26

On this understanding of the natural goodness thesis, we can see the plausibility of

Rousseau’s second contention—that “natural goodness” is nevertheless consistent with

widespread moral corruption and vice in society. Of course, the vice and corruption in

question only come to the fore as the idyllic pastoral life of the barbarian family is

transformed into the life of civilized man. It is the latter who, for Rousseau, epitomizes moral

corruption: “our souls have become corrupted in proportion as our Sciences and our Arts

have advanced toward perfection… Virtue has been seen fleeing in proportion as their light

rose on our horizon” (FD I.16). Corruption is rooted in the joint operation of two tendencies

in our cultural development. First, perfectibility enlarged our material needs and gave rise

to new, psychological ones, making everyone dependent on others for their satisfaction.

Second, the inequalities introduced by private property change the nature of amour propre:

it is no longer a need for recognition of one’s equal standing, which can be met by the love-

mediated dynamics of the family, and it increasingly becomes a desire to be recognized as a

26 I am indebted to Joshua Cohen’s arguments for the innocence reading of the natural goodness thesis.
See Cohen 2010 (esp. pp. 111-113, 182-184) and 1997 (pp. 104, 116-118). For an earlier (though not as clearly
argued) statement of the same view, see Croker 1960: “This pre-human is a stranger to moral goodness, or
virtue, which requires moral judgment and self-sacrifice—of which man is capable, precisely, only in society”
(p. 35).
A somewhat different interpretation is offered by Nicholas Dent: “[Rousseau’s] thought is that those
dispositions which are good in a perfectly conventional sense, such as benevolence, compassion, patience,
generosity and so on, are at the same time dispositions that conduce to our own well-being and fullness of life
let alone that of those around us, and are thus ‘natural’ in the primary significance we have identified [i.e., tend
to our preservation, conduce to our final actualization]” (2005, p. 99). In a sense, Dent is right; virtuous
dispositions do tend to promote our well-being and realization insofar as they make it possible to live in society
with others without domination, envy, alienation, and so on. But that is not the point of the “natural goodness”
ascribed to the savage, or “natural man”; such “natural goodness” cannot possibly be about “generosity,”
“patience,” “benevolence,” or indeed any other “conventional” virtue that clearly presupposes language,
socialization, amour propre, etc. Dent’s reading fails to heed Rousseau’s distinction between goodness and
virtue (see p. 178n25).

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superior in society.27 These factors “that can have perfected human reason, while

deteriorating the species, made a being wicked by making it sociable” (SD I.51). These two

strands of social transformation contribute to the defining defect of civilized life: personal

dependence or domination. Private property and the division of labor create conditions of

economic inequality in which many—the poor, the destitute—are rendered personally

dependent on others for the satisfaction of their most basic material needs and, given the

relation between economic status and one’s (perceived) moral standing in the community,

they are therefore equally dependent for the satisfaction of the most basic sense of self-

worth. Meanwhile, the privileged, the rich, rejoice in their inflamed amour propre, and their

economic power is displayed as confirmation of their perceived moral superiority (and so of

everyone else’s inferiority). Civilized people have lost the freedom that comes with personal

independence and in the process, they have come to be defined by alienation from self and

others.

Rousseau’s conjectural history of the human species is not about offering a factual

hypothesis concerning the cultural history of humanity. He explicitly warns that “The

Inquiries that may be pursued regarding this Subject ought not be taken for historical truths,

27 Rousseau’s “Golden Age” of pastoral life and family love is held up as an ideal even though amour
propre has already arisen in that stage of cultural development (SD II.12). This suggests that a non-destructive,
non-alienating, and possibly egalitarian form of amour propre was possible for human beings at that stage of
our species’ cultural development. The image of the family as an institution that fosters caring and egalitarian
concern for others is also a central theme of Emile. In fact, “Emile’s first real relationship with another human
being,” Sophie, is “a freely chosen enduring union between equals based upon reciprocal affection and respect,
each treating the other as an end in himself” (Bloom 1979, p. 22).
Neuhouser makes the perceptive point that even in the case of love there is a “pursuit of superior
standing” insofar as the lover desires “to be loved above everyone else by some other particular individual”
(2014, p. 147). But this is a harmless “pursuit of superior standing”: what Emile wants is to be the most lovable
for Sophie, not the most lovable simpliciter, and that positional good can be attained by most people
simultaneously (expect, sadly, for those who love someone who loves somebody else in turn). Still, the relation
between Sophie and Emile is one of mutual love, which has an egalitarian dimension, as each desires to be seen
as an equal by the other (hence Rousseau’s insistence that love “must be reciprocal,” E IV, pp. 214, 349).

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but only for hypothetical and conditional reasonings” (SD Exordium 6).28 Rather, he took

himself to be offering a theory of error for the natural goodness thesis, that is, a plausible

explanation for how a being that is morally innocent by nature can nevertheless make itself

wicked and corrupt.29 “There is not a single vice to be found in [the human heart] of which

it cannot be said how and whence it entered” (E II, p. 92), for none was originally there by

nature. What is critical to this theory of error is that it entails that the process of moral

corruption was not inevitable: if the natural goodness thesis is correct, then our natural

human endowment can be expressed differently under different social circumstances.30 This

is why Rousseau insists that the “undertaking to disentangle what is original from what is

artificial in man’s present Nature” is “necessary to have exact Notions in order accurately to

judge of our present state” (SD Preface 4). While the “pure” state of Nature is irretrievable

(how could civilized persons purposely and reflectively undo all their socially acquired

capacities, including rational reflection itself?31), virtue is not completely out of reach. More

28 “Natural man” is an intellectual construction because civilized man is no longer able to disentangle the
truly natural (i.e. original) from the artificial: “The farther we are removed from the state of nature, the more
we lose our natural tastes: or, rather, habit gives us a second nature that we substitute for the first to such an
extent that none of us know the first nature any more” (E II, p. 151). The depth of the difficulty is well expressed
by Alan Ryan: “if we hope to get a human nature by “stripping away” the effects of socialization, it looks as if we
must already know what the effects of social life are… the concept of human nature is confessedly a theoretical
construction” (2012 [1973], p. 221). On the purely theoretical character of “natural man,” see also Crocker
(1960, p. 34) and Neuhouser (2014, pp. 33-37).
29 I adopt the idea of a “theory of error” from Williams 1985, pp. 42-44, 152. For a similar interpretation
of the point of Rousseau’s conjectural history, see Cohen 1997, pp. 119-124, and Rawls 2007 [1971], pp. 207,
214.
30 Rousseau went quite far on this score: “I know of no philosopher who has yet been so bold as to say:
this is the limit of what man can attain and beyond which he cannot go. We do not know what our nature
permits us to be” (E I, p. 62)—though we do know (he would add) what our nature dos not condemns us to
being. Rousseau’s idea that our natural endowment is indeterminate and that the conditions for its concrete
expression depend on socio-cultural factors continues to resonate in contemporary debates about culture,
evolution, and mind. The work of Clifford Geertz is a particularly clear example: “One of the most significant
fact about us may finally be that we all begin with the natural equipment to live a thousand kinds of life but end
in the end having lived only one” (Geertz 1973, p. 45).
31 “Man does not easily begin to think. But as soon as he begins, he never stops. Whoever has thought
will always thing, and once the understanding is practiced at reflection, it can no longer stay at rest” (E IV, p.
254).

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importantly, the political arrangements born of a social condition of radical dependence,

inequality, and domination are by no means inevitable. On the contrary, if the background

conditions of inequality are transformed, the fact that we are not individually self-sufficient

need not be a systematic cause for the establishment of social relations of domination

between rich and poor.

The problems of civilized life will also require curbing the demands of amour propre

when they can only be met by deepening social inequality. Fortunately, this is also possible

because, for Rousseau, human psychology is strongly path-dependent. Our innate

dispositions (amour de soi and compassion) are open-ended in the sense that their concrete

manifestations will heavily depend on the institutions into which we are socialized; such

institutions “exercise a predominant influence over which propensities will develop and

express over time,” and over how they express themselves.32 Amour de soi does not have to

express itself in socialized human beings exclusively as a desire to be, and be recognized as

being, superior to others in every respect; it can just as “naturally” take, in some contexts,

the egalitarian, reciprocal shape characteristic of pastoral family life.33

32 Rawls 2007 [1971], p. 206.

33 The view that Rousseauian amour propre can be egalitarian and is not necessarily “inflamed” has been
forcefully defended by Dent (2005, pp. 68-71, 104-106), Neuhouser (1993, pp. 376-378, and 2014, pp. 66-68,
76-78), Cohen (1997, pp. 109-110, and 2010, 101-104) and Rawls (2007 [1971], pp. 199-200). The case is
often presented as if human beings could completely eradicate the desire for superior standing, as if all our
self-conceptions and valuations could be satisfied by recognition as an equal alone. But that would be an
impossible and utterly undesirable ideal. Language and comparison arguably make inegalitarian valuations
inevitable, which also seem necessary to our sense of self-worth and achievement and to the meaningfulness
of our pursuits. Of course one wants to be good at what one does, and being good at something is more often
than not a matter of being better than others who engage in the same activity. As my discussion in the text
shows, Rousseau was not in the business of eradicating such domain-specific desires for superior recognition.
What really seemed to trouble him was the idea that some people want to be seen as being more valuable or
more important tout-court. Virtue does not require universal mediocrity, but it does require acknowledging
our equal value qua human beings.

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The possibility of both egalitarian and inegalitarian yet constructive forms of amour

propre is an important theme in Rousseau’s Emile. As a starting point, Rousseau makes it

clear that nothing in the nature of amour propre makes it inherently vicious; it “becomes

good or bad only by the application made of it and the relations given to it” (E II, p. 92). In

fact, the friendship that develops between Jean-Jacques and Emile once the latter reaches

puberty is a clearly egalitarian relationship with the recognitive structure typical of amour

propre: “Far from thus disheartening your pupils’ youthful courage, spare nothing to list up

their souls; make them our equals in order that they may become your equals; and if they

cannot yet raise themselves up to you, descend to their level without shame, without scruple”

(E IV, p. 246; emphasis added). (Jean-Jacques seems to be totally sincere about engaging

with Emile as an equal. This is not something he does merely as a pretense for pedagogical

purposes: “He is still your disciple, but he is no longer your pupil. He is your friend, he is a

man. From now on treat him as such,” E IV, p. 316.). Friends like Jean-Jacques and Emile

seem to recognize each other’s standing as equals.

More interestingly, Rousseau thinks that some forms of inegalitarian amour propre

can lead the way to a virtuous character: “Let us extend amour-propre to other beings. We

shall transform it into a virtue… The more one generalizes this interest, the more it becomes

equitable, and the love of mankind is nothing other than the love of justice” (E IV, p. 252). It

seems that the way in which this psychological transformation works is by nurturing a

salutary interest in other people’s valuations about us, provided that the valuations we care

about are essentially meritocratic. Emile “will not worry about arbitrary evaluations whose

only law is fashion or prejudice. He will have the pride to want to do everything he does well,

even to do it better than another… But he will hardly seek advantages which are not clear in

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themselves and which need to be established by another’s judgment… still less will he seek

those advantages which are not at all connected with one’s person, such as being of nobler

birth, being esteemed richer… He loves men because they are his fellows…. He will not

precisely say to himself, ‘I rejoice because they approve of me,’ but rather, ‘I rejoice because

they approve of what I have done that is good. I rejoice that the people who honor me do

themselves honor. So long as they judge so soundly, it will be a fine thing to obtain their

esteem’.” (E IV, p. 339). Rousseau’s description of Emile at age 20 confirms that amour

propre can become a force for good even if it is sometimes expressed as an interest in being

recognized for one’s excellence and not always as a more modest desire to be afforded equal

standing in society. “In becoming the benefactor of some and the friend of others, he does

not cease to be their equal… He has the amiable delicacy which flatters and feeds amour-

propre with the good witness of oneself” (E V, p. 436). Because it can take such different

forms, and because it is so motivationally powerful, “Amour-propre is a useful but dangerous

instrument” (E IV, p. 244).

This analysis of amour propre illustrates the general pattern of Rousseau’s critique of

civilization. The basic idea is that socialization perpetuates psychological drives and social

institutions that have thus far been divisive, destructive, and alienating, but that are not

inevitable or hard-coded in human “nature.” The question is, how much can be changed

within the limits of what civilized individuals can feasibly become? What is needed is to

devise a form of political association that enables civilized people to be free of all personal

dependence even though their needs, economic as well as psychological, make it necessary

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for them to live in society with their fellows. This is precisely what Rousseau sets out to do

in The Social Contract.34

Rousseau’s conjectural history is also a sustained critique of the way in which his

contractualist predecessors conceived of and deployed the state of nature in their political

theories. Rousseau believes that theorists like Hobbes’s failed to distinguish “natural man”

properly so-called (i.e., the savage) from both pre-political man (i.e. the barbarian) and the

early stages of civilized man. Thus, when Hobbes characterizes the state of nature as a state

of war he cannot possibly be talking about the “pure” state of nature, but rather about a

condition where inequality, competition, and amour-propre already structure social

relations (SD II.29). According to Rousseau, Hobbes, Locke, and others mistakenly

“transferred to the state of Nature ideas they had taken from society; They spoke of Savage

Man and depicted Civil man” (SD Exordium 5; cf. SD I.25).35 Contrary to Hobbes’s picture,

Rousseau insists that “Men are not naturally enemies, if only because when they live in their

primitive independence the relation among them is not sufficiently stable to constitute either

a state of peace or a state of war” (SC I.4.7).

What is truly original and important about Rousseau’s approach to the state of nature

is the special role it plays in the architecture of this social theory. The state of nature is not

34 Rousseau’s positive proposal to remedy the defects of civilized life together with the fact that he
worked out relatively concrete reform plans for Poland and Corsica indicate that he was not as “consistently
and overwhelmingly pessimistic” (Bertram 2012b, p. 1) as he is often taken to be. It is true that the genealogy
of the state in the Second Discourse is far from flattering; there, Rousseau presents it is little more than an
instrument of class oppression ingeniously created by the rich to keep the poor in check. However, an account
of how things have turned out to be thus far does not preclude a more optimistic vision of how they might be
in the future. To contrast the Second Discourse and the Social Contract as respectively dystopian and utopian
perspectives on one and the same problem (e.g., Bertram 2012b, pp. 12-13) is to misunderstand the very
different purposes of each text.
35 Rousseau’s criticism is rather unfair to Hobbes, as the latter’s conception of the state of nature is pre-
political but not pre-social (Steinberger 2008, p. 597). See p. 171n15 on this very issue.

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the paradigm of the problems that make political association necessary, as in Hobbes’s

thought. Nor is it a permanent threat, for it is irretrievably lost; it “no longer exists…perhaps

never existed… and probably will never exist” (SD Preface 4). Rousseau’s “pure” state of

nature needs no politics at all because it is a condition of widespread personal independence,

and it cannot be recreated because personal independence there was grounded in a degree

of individual autarky that is inconsistent with the material and psychological needs of

modern, civilized individuals. What Rousseau’s conjectural history shows is that the

problems that cry for a political solution are man-made and characteristic of civilization, not

of the life of the savage or the barbarian. Fortunately, because these problems are of our

own making, they are not insoluble: our moral corruption, our inflamed sense of amour

propre, our attachment to inequalities that breed personal dependence and reflect

inequalities of social standing—these are all a function of social institutions which, like any

human convention, it is within our power to change.

The sense in which the state of nature is a kind of normative baseline for Rousseau

has nothing to do with the Hobbesian urgency to leave it behind. On the contrary, we need

to re-create what was valuable in it—freedom in the form of personal independence—under

conditions of irreducible interdependence. Rousseau’s calling is for perfectibility to be

deployed, consciously, with the aim of correcting the self-inflicted harms of its historical

course: “we inflict upon ourselves more ills than Medicine can provide Remedies! Such are

the fatal proofs that most of our ills are of our own making, and that we would have avoided

almost all of them if we had retained the simple, uniform and solitary way of life prescribed

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to us by Nature” (SD I.9). Rousseau wants us to understand who we once were and how we

became what we now are so that we may envision what we can still become.36

On this reading, it is not at all surprising that the state of nature plays such a marginal

role in The Social Contract. Rousseau means his words when he says that the book takes

“men as they are, and the laws as they can be” (SC I.1): to take men as they “are” means to

take them as already civilized, as already living in some form of political association or other.

There is no point in even arguing about whether human beings should live in a political

community, as that is a settled characteristic of the current stage of civilization. Instead, the

question is “What can make it legitimate” for them to continue to live in such a way (SC I.1.1,

emphasis added).37 The question, in other words, is not how people can definitively

overcome the maladies of a state of nature that they no longer inhabit and which they would

have had no reason to escape anyways, but whether their modern-day institutions can be

36 My approach is at odds with Shklar’s markedly pessimistic reading of Rousseau’s politics as being
essentially a “politics of prevention” (1969, pp. 165ff), and of the Social Contract as a work of social criticism in
the form of a utopia (pp. 1-3, 12-21, 119). It seems to me that Shklar’s reading of Rousseau as a utopist is quite
plausible with respect to his writings about the “Golden Age” of the barbarian, especially his portrayal of what
isolated, pastoral life would be like for a modern family in the Nouvelle Héloise (pp. 6, 21-29, 151-154). The
utopian dimension of this vision is unsurprising in light of Rousseau’s argument in the Second Discourse:
clearly, such a life is hopelessly unsatisfactory for any modern, fully socialized, and civilized person. But there
is no comparable argument for extending the utopian shadow over The Social Contract. On the contrary: that
text is clearly the blueprint of an ideal with enormous practical import, as Rousseau himself exemplified in his
proposals for reform in Poland, Corsica, and Geneva.
Perhaps the right thing to say about Shklar’s brilliant analysis of Rousseau’s thought is that it highlights
how very demanding, difficult, and even fragile the Rousseauian political ideal is. But none of this is to say that
it is impossible, or that Rousseau though that it was so. Because the ideal is improbable, but not impossible,
Rawls aptly thinks of Rousseau’s as a “realist utopia” (2007 [1971], pp. 193, 206).
37 The full passage is this: “Man is born free, and everywhere he is in chains. One believes himself the
others’ master, and yet is more a slave than they. How did this change come about? I do not know. What can
make it legitimate? I believe I can solve this question” (SC I.1.1). It might seem that Rousseau is disingenuous
here, for the Second Discourse is all about how “this change came about.” But I take him to mean that the actual
history of humanity—the series of true historical events that have brought us here—is irrelevant to the
argument of The Social Contract. What matters is the insight from Rousseau’s conjectural history, to wit: that
virtually all the social and psychological structures of civilized life are human artifices and thus, in principle,
subject to (some degree of) intentional control or intervention. (For a radically different and, in my view,
mistaken account of how The Social Contract and the Second Discourse fit together, see Crocker 1960, p. 44.)

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modified so as to make freedom as personal independence possible again in a world of

ineliminable social interdependence. Rousseau’s social contract is required to correct the

maladies of a “post-state-of-nature social order.”38

Because Rousseau’s project of justifying a legitimate state begins in historical medias

res, he is perfectly aware that his proposal must be convincing and persuasive to “men as

they are,” here and now.39 It would be contradictory with his own conjectural history to rely

on the perspective of the barbarian, for instance, to construct the rationale for legitimate

institutions. And it would be pointless, too—for that is no longer the perspective of his

modern audience. Rousseau must therefore address himself to the civilized man who so

closely resembles the competitive and self-seeking individual in the Hobbesian state of

nature. This is why Rousseau explicitly deploys the language of rational self-interest to

account for the rationality of his proposed social contract, though it is evidently not an

agreement reached by individuals in a state of nature properly understood.40

38 Yonah 1997, p. 301. George Sabine is exactly right: “The question, what justifies the existence of
communities, should have been treated by [Rousseau] as nonsensical” (1961, p. 588).
39 Rousseau drew an interesting distinction between convincing and persuading. To convince is to win
an argument on rational grounds; to persuade is to move another not just to concede the point, but in some
sense to make it his own, to live by it, as it were. Hence Rousseau’s association between persuasion and “proof
by sentiment” (Letter to Voltaire, §30; cf. OL IV.4, XIX.2). While the Lawgiver must be able “to persuade without
convincing” (SC II.7.9), the philosopher—Rousseau—is expected to make rationally convincing arguments. But
if the philosopher hoped to see his arguments taken seriously in practice, as Rousseau surely did, then they
must also persuade.
40 Sabine argues that “Manifestly, in view of his criticism of natural man, he ought to have avoided the
notion of contract altogether as both meaningless and misleading. Seemingly he retained the phrase because
he liked its popular appeal, and in order not to make the inconsistency too glaring, he deleted [from The Social
Contract] the criticism of the state of the state of nature which he had written against Diderot” (1961, p 587).
This view mistakenly assumes that the idea of a social contract only makes sense against the background of a
specific conception of the state of nature. Rousseau used the idea of a contract, first, to highlight the
justificatory burden of making legitimate institutions convincing and persuasive for self-seeking, rational
agents and, second, to emphasize the centrality of consent to state legitimacy (as I explain in Chapter 4.4). Pace
Sabine, nothing in The Social Contract recants Rousseau’s criticism of the model of the state of nature employed
by Hobbes, Locke, and the other contractualists against whom the argument in the Second Discourse is clearly
addressed. Incidentally, Rousseau’s quarrel with Diderot pertained to the idea of the general will, not of the
state of nature (cf. Yonah 1997, p. 298, and Douglass 2015, pp.109-112).

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4.3 Freedom, Civil and Moral

If this interpretation is right, then the fundamental problem to which a legitimate

political association is a solution is that of personal dependence as the gravest systematic

threat to individual freedom. Rousseau summum malum is for a human being “to find himself

at the other’s discretion” (SD II.37)41—which is precisely what tends to happen whenever

severe inequalities render people subject to the will of others in order to satisfy their

material and psychological needs.

There is an obvious solution to this problem: to eliminate interdependence altogether

so that nobody is ever in a position to have to submit to the will of another in order to provide

for their basic needs. If our needs could be so radically shrunk so as to make everyone

individually self-sufficient, there would simply be no opportunity for relations of personal

dependence to take hold. This would essentially amount to a return to the primitive life of

the autarkic savage, or perhaps to the Golden Age of the barbarian’s pastoral life in the family.

But Rousseau’s conjectural history shows that this is a utopian aspiration, one that no

modern, civilized individual could earnestly wish for.42 The Golden Age is a principled

There is a further reason why Rousseau might have thought it helpful to speak of a social contract
despite his critique of the state of nature, and this is that talk of “contract” highlights the artificiality or
conventionality of all forms of political authority. In Rousseau’s words: “Since no man has natural authority
over his fellow-man, and since force produces no right, conventions remain as the basis of all legitimate
authority among men” (SC I.4.1). The idea that political society is always an artifice is common to Rousseau
and Hobbes (cf. Steinberger 2008, p. 596), and contrary to the Aristotelian doctrine of natural slavery (which
Rousseau explicitly rejects in SC I.3.8).
41 This is also true of Emile: “Nurtured in the most absolute liberty, he conceives no ill greater than
servitude” (E IV, p. 244).
42 The world of the individual savage and the life of the barbarian are no longer “real options” for the
civilized individual, who would have to treat as unnecessary luxuries most of the things that he or she keenly
feels to be necessary for, even constitutive of, personal well-being. I adopt the idea of “real options” from
Williams (1975). See also p. 167n7 on this anti-primitivist reading of Rousseau’s solution to the problems of
civilization.

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impossibility, desirable though it may be in its own terms. “From knowledge to ignorance, it

is but a single step; and Nations have frequently gone from one to the other; but never has a

people, once corrupted, been known to return to virtue” by turning back time (Observations

62). Along with knowledge, the needs of civilized man have so greatly expanded beyond the

bare minimum of self-sustenance and reproduction, that they must be met rather than

eradicated. No civilized man can live content without the cooperation necessary to ensure

personal well-being against the background of ineliminable interdependence. As Rousseau

himself puts it, “Let us not think of ourselves as being like those primitive men of our

imagination who needed no one because nature alone supplied all their needs... Social man

is too weak to do without others” (LVIS paragraph 7).43

If a life of complete self-sufficiency is irretrievable and interdependence is a fixture of

civilized life, what Rousseau needs to show is how human beings can rely on one another to

satisfy their needs without also being at one another’s “discretion.” The political ideal of the

social contract is precisely one of social interdependence without personal dependence—

that is, a social world where civilized individuals can live alongside others and be

nevertheless free. In order to explain how Rousseau’s proposal for such a society works, we

first need to understand his idea of freedom.

Rousseau actually draws on three concepts of freedom that must be (and often are

not) properly distinguished.44 The passage where Rousseau draws this distinction explicitly

is worth quoting in full:

43 See p. 181n28 on “natural man” as a theoretical fiction, as a creature “of our imagination.”
44 Wokler (2012 [1987]), for instance, articulates an account of Rousseau’s views on freedom that is far
more obscuring than illuminating. The problem with Wokler’s interpretation is precisely his disregard for the
theoretical distinctiveness of each of Rousseau’s three (not two) notions of freedom.

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What man loses by the social contract is his natural freedom and an unlimited
right to everything that tempts him and he can reach; what he gains is civil freedom
and property in everything he possesses. In order not to be mistaken about these
compensations, one has to distinguish clearly between natural freedom which has no
other bounds than the individual’s forces, and civil freedom which is limited by the
general will, and between possession which is merely the effect of force or the right
of the first occupant, and property which can only be founded on a positive title.
To the preceding one might add to the credit of the civil state moral freedom,
which alone makes man truly the master of himself; for the impulsion of mere
appetite is slavery, and obedience to the law one has prescribed to oneself is freedom.
(SC I.8.2-3, emphases added)

We have, then, three distinct forms of freedom: “natural,” “civil,” and “moral.” Natural

freedom, insofar as it is a right, must be a normative attribute; and insofar as it is an

“unlimited right,” it must mean that an agent regarded as naturally free is under no

normative constraints on choice at all. Natural freedom is a sort of unqualified, non-domain-

specific Hohfeldian privilege: qua naturally free, a person is allowed to do anything she

wants, there being no duties that bind her or rights that other people can press against her.45

Whatever the agent wants, she is entitled to do qua naturally free. Notice, though, that

Rousseau connects the bounds of natural freedom with the limits of “the individual’s forces”

or what “he can reach.” This suggests that natural freedom is not an entitlement to do or

have what one cannot self-sufficiently procure—i.e., it is not a Hohfeldian right that obligates

other people to cooperate with one’s ends.46 To undertake some project with the sole

warrant of natural freedom is like physically possessing something one does not own: one’s

ability to do either thing depends on “the individual’s forces,” on the physical power to fend

off any other agent who might want to interfere with one’s pursuits.

45 In Hohfeld’s scheme, “a privilege is the opposite of a duty, and the correlative of a ‘no-right’” (1964
[1919], pp. 38-39).
46 Op. cit., pp. 36-38.

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What is most telling about Rousseau's association between natural freedom and mere

possession is that the exercise of natural freedom, like the enjoyment of goods which one

merely possesses but does not own, is extremely dependent on what other people do (or

refrain from doing). My physical possession of an object is, after all, not a normative

limitation on what others can do with it; anyone else is (naturally) free to take the object

from me, provided they have enough physical strength to overpower me. A world structured

only around the principle of natural freedom would be one in which I could only expect to

act with the things I can physically control here and now, and only for as long as a stronger

(or cleverer) party does not take them from me. Since the limits of natural freedom are just

the limits of one’s physical constitution, this would be a world structured solely around

relation of physical power and cunning. The strong would enjoy an “unlimited right” to

manhandle the weak and the weak would only be able to act unhindered if the strong give

them a pass. Such a social world would be very much like Hobbes’s state of nature.47 This is

why Rousseau at one point equates natural freedom with “unbridled license,” the “very

opposite” of freedom properly understood (SD Epistle Dedicatory 6).48 Natural freedom is

the Rousseauian analogue of Hobbes’s “right to all things” in the state of nature (L XIV.3):

normatively boundless, but utterly self-defeating when equally enjoyed by all, weak as well

47 Unsurprisingly, Rousseau expressly refers to the freedom of natural man as “natural freedom” (SD
II.33; emphasis added).
48 Rousseau did not attribute much value to natural freedom. I thus disagree with Wokler’s view that
Rousseau “certainly agreed with Hobbes that our fundamental liberty was to be found [in the state of nature],
and not under the political hegemony of any sovereign’s rule” (2012 [1987], p. 161; cf. also pp. 163-164). This
is directly contradicted by SC I.6.4, a critical passage on which I comment in sections 4.4 and 5.3. Wokler’s
entire argument is premised on the wrong theoretical framework, namely, Berlin’s distinction between
“positive” and “negative” freedom (2002 [1958]). I comment on Berlin’s reading of Rousseau in p. 196n54.

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as strong, without restraint. It is a “right” that “would not add very much to force, and would

hardly be anything but a play on words” (E V, p. 459).

Civil freedom is distinguished from natural freedom in both scope and effects. Unlike

natural freedom, which extends as far as one’s physical power, civil freedom is “limited by

the general will.” And the enjoyment of civil freedom is compared with a “positive title” to

“property,” which at the very least involves the right to exclude all others from using what I

own even while I am not physically in possession of it.49 Though this is not yet a positive

account of what civil freedom is, one can readily appreciate how very different it is from

natural freedom. For starters, it is clear that Rousseau thought of civil freedom as an

acquired normative entitlement that can only be enjoyed under certain social conditions. In

other words, it is a kind of freedom that people possess as a function of some objective

conditions that obtain in their relations with others. It is irrelevant what exactly I would like

to do with what I own; what matters is that others are not allowed to appropriate my things,

even if I would not mind their doing so. Unlike the case of natural freedom, relative physical

strength has no bearing whatsoever on what I and others are allowed to do: civil freedom is

not natural, but “conventional” (SC I.6.5), and it entails that I have a sphere of rights that is

protected not just from actual interference, but from the very possibility that others might

want to interfere with my affairs with impunity.50 What others might happen to want

49 “The right to possess, viz. To have exclusive physical control of a thing, or to have such control as the
nature of the thing admits, is the foundation on which the whole superstructure of ownership rests. It may be
divided in two aspects, the right (claim) to be put in exclusive control of a thing and the right to remain in
control, viz. the claim that others should not without permission interfere” (Honoré 1993 [1961], p. 371).
Rousseau says nearly as much: “The right of the first occupant… becomes true right only after the right of
property has been established. Every man naturally has the right to everything he needs; but the positive act
that makes him the proprietor of some good excludes him from all the rest… In this right one respects not so
much what is another’s as what is not one’s own” (SC I.9.2).
50 One indication that Rousseau understood property rights in precisely this way is his account of how
Emile learns about relations of justice. Because “the first sentiment of justice does not come to us from the

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becomes irrelevant, as my rights generate correlative obligations on them. If justiciable

private property rights can only exist in a political community, and such rights are

representative of what civil freedom is, it follows that civil freedom itself is a political

achievement.

Civil freedom, Rousseau believes, is what “guarantees [each Citizen] against all

personal dependence” (SC I.7.8). The contrast, of course, is with the kind of dependence

characterized as subjection to the will of another, as finding oneself “at the other’s discretion”

(SD II.37). This is exactly the dependence that was unknown to the savage, “whom it would

even be rather difficult to get to understand what subjection and domination are”: for the

savage, it is impossible to fathom that anyone would “ever succeed in getting himself obeyed

by [another]” because nobody could be so dependent on others so as to be willing to bend to

an alien will (SC I.49).51 Dependence is the source of subservience and, ultimately, slavery,

the polar opposite of civil freedom. “The only one who does his own will is he who, in order

to do it, has no need to put another’s arms at the end of this own” (E II, p.84; cf. SD I.50). (We

have already seen where this problem of dependence and domination begins, namely in the

multiplication of “desires which are not true needs and which can only be satisfied with

another’s help,” E II, p. 84.) People who depend on others can be blackmailed, strong-armed,

justice we owe but from that which is owed us,” Emile is made to experience what it is like for other people to
transgress his property (E II, p. 97). One day, Emile finds that the beans he has planted in the garden have been
plowed under; he is indignant at the violation of what is his until he realizes that he was the original
transgressor. The plot of land was originally the gardener’s, whose melons Emile inadvertently ruined in
planting his bean seeds. The exchange between Emile, Jean-Jacques, and Robert (the gardener) revolves
around their shared understanding that rights cannot be violated with impunity: “No one touches his
neighbor’s garden. Each respects the labor of others so that his own will be secure,” says Robert (E II, p. 99).
In the end, the resolution to the situation involves direct compensation for the damage caused, per Jean-
Jacques’s proposal: “Could not we propose an arrangement with the good Robert? Let him grant us, my little
friend and me, a corner of his garden to cultivate on the condition that he will have half the produce” (ibid.).
51 See Neuhouser 2011, pp. 484-487 for a helpful discussion of the relation between domination and
dependence.

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and pushed around; and often they will adjust to another’s will even without being asked to

do so. Fear of losing what is in another person’s power to provide or withhold can be as

effective a bond as physical chains or actual coercion. This is the sense in which being an

obnoxious lackey for lack of independence is a form of unfreedom, and for the same reasons

that a slave who is not actually coerced remains utterly unfree.52 This is precisely what

Rousseau is getting at in SC I.4 with the concept of “civil” freedom. In one of his clearest

statements of what such freedom involves, he says that “Liberty consists less in doing one’s

will than in not being subject to someone else’s… I know no truly free will other than the one

to which no one has the right to oppose resistance” (LFM VIII, pp. 260-261). This clearly

places Rousseau in the company of a long tradition of thought that conceived of political

freedom as the status of a person who is sui iuris. Civil freedom is about the enjoyment of a

protected set of options delimited by the general will and within which the agent can choose

without depending in any way on the (good or malicious) will of another. “Thus liberty

without justice is a genuine contradiction,” as the only way to be sui iuris in a society of

interdependents is to enjoy the protection of the law.

When Rousseau links civil freedom to the overcoming of personal dependence he is

expressing a fundamental commitment to the republican idea of freedom as non-domination.

The distinctiveness of this understanding of freedom is best understood by contrast with the

familiar liberal idea of freedom as non-interference.53 On the liberal view, I am unfree

52 For the contrast between “independent gentlemen” and “persons of obnoxious character” in English
republican thought, see Skinner 1998, pp. 87-95. Since Emile is intended to be an independent gentleman he
is advised not to live in a place where dependence forces him to become a lackey: “Arrange it so that, living
justly, you do not have to pay court to administrators, their deputies, judges, priests, powerful neighbors, and
rascals of every kind, who are always ready to torment you if you neglect them” (E V, p. 457).
53 I draw on the work of Skinner (1998) and Pettit (1997) in illustrating the contrast between these two
traditions of thought about freedom. Incidentally, I think it is quite likely that Rousseau was aware of the
intense debates around the notion of liberty in 17 th century England, as his library included works by some of

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whenever my pursuits are actually interfered with, and any actual interference is

detrimental to my freedom no matter where it comes from. By contrast, civil freedom as

non-domination entails that one is unfree even “when someone who has the power of

interfering at will… happens to stay their hand, thereby exercising restraint and displaying

indulgence,” but “you are not unfree if you suffer the interference of another agent or agency

but enjoy a suitable degree of control over the interferences practiced.”54 The key point is

that civil freedom requires that I be protected not merely from actual but from possible

interference, and protected not from any but from arbitrary (intentional) sources of

interference that are completely beyond my control or direction.

its protagonists: Hobbes, Locke, Milton, and Sidney (Richebourg 1932). Wokler also argues that Rousseau’s
idea of freedom seems “illiberal” to modern readers precisely because it predates the rise of the liberal
(Hobbesian) idea in Anglophone thought (2012 [1987], pp. 156-158). Neuhouser’s claim that civil freedom is
a species of negative freedom understood as non-interference (2011, p. 480) completely blurs the significant
differences between the liberal and republican or neo-Roman theorists in the early modern period; the
distinction is significant in itself and also for the purpose of understanding Rousseau, as I argue in the main
text.
54 Pettit 2016, pp. 170. Throughout this section I draw on both Pettit (1997) and Skinner (1998) to
explain the nature of civil freedom understood as non-domination. Contrast this approach with Bertram’s
(2012b, pp. 18-19), for whom the republican idea of freedom as non-domination is a “fourth conception of
freedom” in Rousseau whereas I take it to be the very core of Rousseau’s civil freedom.
The contrast between non-interference and civil freedom suffices to reject Isaiah Berlin’s reading of
Rousseau. Berlin interprets Rousseauian freedom as an odd amalgam of non-interference and Stoic apatheia.
At one point, he says that for Rousseau “freedom simply consists in men wanting certain things and not being
prevented from having them. What, then, do they want? What I necessarily want is that which is good for me—
that which alone will satisfy my nature… Therefore those alone are free who not merely want certain things
but also know that, in fact, will alone satisfy them” (2002 [1952], p. 38). Elsewhere, Berlin says that Rousseau’s
“mysterious assumption of the coincidence of authority and liberty” only works “if the chains are something he
chooses for himself,” in which case “the chains are no longer chains. A man who is self-chained is not a prisoner”
(p. 43).
Both statements are clearly mistaken. The first passage ignores the natural/civil freedom distinction,
and the second implies that an act of consent can make any constraint or burden consistent with freedom,
which Rousseau expressly denies (as I explain in Chapter 5.1). If the “chain” in question is an alien will, it is
impossible for consent to legitimize it. Berlin’s suggestion that adaptive preferences make one free in
Rousseau’s sense lead him to level the unfounded accusation that the chief evil of Rousseau’s doctrine was
“launching the mythology of the real self… For this great perversion Rousseau is more responsible than any
thinker who ever lived… [He] was one of the most sinister and most formidable enemies of liberty in the whole
history of modern thought” (op. cit., pp. 48-59). On Rousseau on adaptive preferences, see p. 162n2.

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Rousseau’s depiction of despotism clearly signals a concern with the sheer power to

interfere with people’s lives. This is strongly indicated by his rhetorical critique of defenders

of despotism, whom he portrays as presenting an unacceptable tradeoff between tranquility

and freedom (SC I.4.3, E IV, p. 312n). In a passage I have cited before, Rousseau insists that

“one has to choose” between “repose and freedom” (GP 1.3)—and the idea of “repose” clearly

suggests that life under a despotic regime need not involve a heavy-handed, intrusive state.

Encountering an extremely dependent individual whose “utmost security… for his person or

state” depended on the “temper” of some other, more powerful person,55 Rousseau would

surely say to him, “up to now you were only apparently free. You had only the precarious

freedom of a slave to whom nothing has been commanded” (E V, p. 445). The dependent

person molds his or her own will to what the other wants without there having to be visible

coercion, just as may happen to subjects living under despotism: what keeps them in line is

the state’s power to coerce them in any way it sees fit and with total impunity. No wonder

Jean-Jacques instructs Emile to search for a political community where he “can live

independent and free… without fear of being harmed” (E V, p. 457; emphasis added).

The problem with despotism is not (primarily) that it actually and recurrently

interferes with people’s affairs. More fundamentally, despotic states have the power to

coerce people arbitrarily—which can make actual coercion relatively unnecessary, as

subjects will mold and restrain their choices in anticipation and fear. “Arbitrary Power” is

“but [the] corruption [of] Government” (SD II.43). More precisely, it is the opposite of

legitimate power: “If we follow the progress of inequality through these different

55 Algernon Sidney, Discourses Concerning Government (cited in Skinner 1998, p. 91). Rousseau owned a
copy of Samson’s 1702 translation of Sidney’s Discourses (Richebourg 1932, p. 243).

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revolutions, we will find that… the conversion of legitimate into arbitrary power [du pouvoir

lé gitime en pouvoir arbitraire] [was] the third and last [term]” (SD II.49). The arbitrary

power of despotic rule makes life uncertain, hopelessly dependent on the unpredictable and

inscrutable will of the ruler. And that is all quite consistent with the appearance of stability,

peace, and “tranquility.” Rousseau’s depiction of an actual despotic rule ties all these

elements together: “Why are the Turks generally more humane and more hospitable than

we are? It is because, with their totally arbitrary government, which renders the greatness

and the fortune of individuals always precarious and unsteady, they do not regard

abasement and poverty as a condition alien to them. Each may be tomorrow what the one

whom he helps is today” (E IV, p. 224). The subject of a despotic state is in a similar position

as the slave of the Roman law: alieni iuris, subject to the will of another.

Now what exactly makes despotic power “arbitrary”? It might seem that the problem

is one of predictability, such that a power is arbitrary if it is perceived as random by those

who are subject to it. But “What does Epictetus gain in foreseeing that his master is going to

break his leg? Does the master break Epictetus’ leg any the less for that? He has, in addition

to his misfortune, the misfortune of foresight” (E IV, p. 225). Mere (un)predictability is not

the heart of the problem. Rather, it appears that power is non-arbitrary if it effectively tracks

or serves the interests of those subject to it; such a power could be trusted not to target them

insidiously, in a manner they could reasonably resent. And a power can be trusted to track

the interests of those who live under it only if it is somehow constrained or controlled by

them or, alternatively, if it is entrusted to an infallibly benevolent agent. This is, I think, the

dilemma Rousseau presses against those who would refuse to accept the principle of popular

sovereignty: “If unfortunately this form [of Government that might place the law above man]

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cannot be found,… I would wish the despot could be God. In a word, I see no tolerable mean

between the most austere Democracy and the most perfect Hobbism” (LM 6). Were God an

earthly despot, nobody could be said to be dominated, as God can be trusted to exercise his

power of interference in perfect harmony with everyone’s interests.

The two ways in which power can be rendered non-arbitrary, hence non-dominating,

are illustrated by the character of Jean-Jacques, Emile’s tutor. During Emile’s early

childhood, Jean-Jacques is a God-like figure with absolute power over the boy; he carefully

stage-manages virtually every detail of the pupil’s entire world. At that stage, Jean-Jacques

is an invisible power, and for that reason all the more effective at controlling the pupil; his is

a power that dominates without coercing, without interfering at all. “There is no subjection

so perfect as that which keeps the appearance of freedom. Thus the will itself is made

captive… Doubtless he ought to do only what he wants; but he ought to want only what you

want him to do” (E II, 120). But this extraordinary power the tutor has is justifiable or

legitimate because it advances the interests of the child: “No one, not even the father, has the

right to command this child what is not for his good” (E II, p. 85). At an early age, the tutor’s

authority cannot but be despotic, as the child is still unable to grasp what is truly in his

interest and thus cannot control or hold the tutor to account. However, this dynamic changes

drastically after puberty. From that point forward, the tutor’s relation to Emile is based on

consent (“he was never better subjected to me; for now he is subjected because he wants to

be,” E IV, 332) and the tutor’s power is subject to a kind of ex-post control, to ensure that it

is only used in Emile’s interests as he sees them: “Always begin by obeying,” says Jean-

Jacques, “and then ask me for an account of my orders. I shall be ready to give you a reason

for them as soon as you are in a position to understand me, and I shall never be afraid of

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taking you as the judge between you and me” (E IV, 326). Jean-Jacques is not an arbitrary

power. He does not dominate Emile once the boy has reached the age of reason, at which

point Jean-Jacques’ authority becomes responsive to Emile’s own view of what is good for

him.

Let us return, then, to the original account Rousseau offers of civil freedom in SC I.8.2:

it is a kind of freedom limited by the general will and analogous to the “positive title” of

property as opposed to mere (physical) possession. Drawing on the preceding discussion,

we can say, then, that civil freedom defines a horizontal relation between individual persons

such that each enjoys a protected domain of action, where the protection involves a

guarantee that nobody has the power to interfere in the affairs of others with impunity.

Therein lies the analogy with property rights, which involve my ability to do as I please with

what I own irrespective of what other people want, of how much more powerful they may

be, and so on. Within my protected sphere of action, I do not need to consult or anticipate

the will of others in deciding what to do; I do not fear their possible interferences. A society

that lives up to the idea of civil freedom is one in which nobody is subject to any other

person’s arbitrium and each is sui iuris. But Rousseau also says that civil freedom is “limited

by the general will.” Whence such limitation? How is it not a freedom-endangering

imposition, like the power of a master over a slave? I take up this very question in section

5.3, where I argue that the limitations imposed by the general will are consistent with being

sui iuris because they are not arbitrary, for every citizen has an equal share of control over

what those limitations ought to be and the limitations imposed by the law are completely

impersonal.

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In addition to civil freedom, Rousseau insists that a legitimate political order also

makes one morally free or master of oneself. Now moral freedom must involve something

more than not being subject to the will of another; otherwise, it would be redundant, adding

nothing at all to civil freedom. If civil freedom is contrasted with juridical slavery or

servitude, moral freedom is opposed to a kind of psychological “slavery”: the “impulsion of

mere appetite.” Moral freedom is the goal of education and character-building and,

consequently, it is the dominant normative notion of Rousseau’s Emile. Once Emile has fallen

in love with Sophie, Jean-Jacques asks the young pupil to leave his beloved in what is the

pedagogical climax of the book—the challenge of attaining autonomy through the rational

control over one’s passions: “A new enemy is arising which you have not learned to conquer

and from which I can no longer save you. This enemy is yourself… In learning to desire, you

have made yourself a slave of your desires… You know how to suffer and die. You know how

to endure the laws of necessity and physical ills, but you have not yet imposed laws on the

appetites of your heart, and the disorder of our lives arises from our affections far more than

from our needs” (E V, p. 443). Emile learns from Jean-Jacques “how to be my own master” in

the sense of obeying “not my sense but my own reason”; only thus can Emile not be “[my

passions’] slave” (E IV, p. 325). In SC I.8.3 and throughout Emile Rousseau is consciously

drawing on a long tradition of thought that conceives of freedom as a sort of self-overcoming,

as the attainment of psychic self-mastery.56 One can even hear echoes of his Calvinistic

56 The theme of freedom as rational control of the passions is as old Plato’s idea of justice as the
harmonious state of a soul structured in accordance with reason (1991 [c. 381 BC], e.g., 586e-5872) and an
integral part of Western though all the way down to the modern era, e.g.: “Human lack of power in controlling
and restraining the emotions I call ‘servitude’. For a man who is subject to the emotions is not his own master,
but is mastered by fortune” (Spinoza 2000 [1677], Part IV Preface, p. 225).
The image of “slavery” to “mere appetite” remains influential in contemporary philosophy, though it is
couched in slightly different language. A good example is Korsgaard’s refutation of the possibility of
“particularistic willing,” which in some ways illustrates why moral freedom is so important to Rousseau’s

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upbringing at various points: “I see the good, I love it; and I do the bad. I am active when I

listen to reason, passive when my passions carry me away… my will is independent of my

senses; I consent or resist, I succumb or conquer” (E IV, pp. 279-280; cf. also V, p. 445). In

his more Augustinian moments, Rousseau goes as far as saying that “The only slave is the

man who does evil, for he always does it in spite of himself” (E V, p. 473).

Moral freedom is therefore not a social, objective phenomenon like civil freedom; it

is not a function of the structure of interpersonal relations, but rather a matter of the agent’s

own volitional profile, of the subjective structure of her will. Someone who acts on the

“impulsion of mere appetite” would be lacking in any kind of unifying life-plan or long-tern

project for herself, for such projects cannot be effectively pursued if one’s desires are not

subject to some sort of rational ordering and control. The person who is morally free in

Rousseau’s sense is the autonomous person whose actions are ordered and guided according

to rational principles, that is, principles rationally and explicitly endorsed by the agent

herself.

There is no reason to expect a constant conjunction of civil and moral freedom, as

neither entails the other. Rousseau surely has moral freedom in mind when he says that

“Freedom is found in no form of government; it is in the heart of the free man. He takes it

conception of the person, as it expresses an individual’s rational capacity for free choice: “in order to will
particularistically, you must in each case wholly identify with the incentive of your action. That incentive would
be, for the moment, your law, the law that defines your agency or your will… Particularistic willing eradicates
the distinction between a person and the incentives on which he acts… He is not one person, but a series, a
mere conglomeration, of unrelated impulses. There is no difference between someone who has a particularistic
will and someone who has no will at all” (Korsgaard 2008 [1999], pp. 123-124).
A similar analysis is offered by Neuhouser, whose “subjective dimension” of moral freedom, in my
view, encompasses the whole of Rousseau’s moral freedom as a “structure of subjectivity required by
autonomy”: “autonomy is free choice carried out in accordance with a conception of one’s own essential
identity, a self-conception that supplies the autonomous being with reasons for endorsing some of its desires
as worthy of being acted on and for rejecting others as incompatible with one’s essential nature” (2011, p. 483).

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with him everywhere. The vile man takes his [moral] servitude everywhere. The latter

would be a slave in Geneva, the former a free man in Paris” (E V, p. 473). When I ask whether

someone is free in the republican, civil sense, I must seek the answer in the world of objective

social relations, that is, in the extent to which a person’s choices are insulated from other

people’s arbitrary interferences. But when I ask about her moral freedom, I must turn to her

subjective constitution and evaluate whether she is the sort of person who makes up her

mind in light of her own, rational principles of action as opposed to following her contingent

and shifting desires at every turn. Because civil and moral freedom track two very different

facts about the agent, there is no inconsistency in someone being free in the civil sense (i.e.

not dominated by an alien, arbitrary will) while being a “slave” to “mere appetite.” By the

same token, an agent can be perfectly autonomous in her internal volitional structure and

still be dominated, as the chilling image of the Stoic slave reminds us.57 Jean-Jacques teaches

Emile how to be free in the moral sense; this will serve him equally well in Geneva and in

Paris. But Emile must still choose where to live and for this, he should ask himself where he

can be free in the civil sense. As a citizen, Emile should want to be independent, sui iuris; as

a man, he ought to become autonomous. The latter he can attain anywhere—that is the great

57 Hegel famously criticized the Stoic idea of freedom that exclusively emphasizes the volitional structure
of the agent without any regard for the objective social relations in which she stands with respect to others.
Relations of power and domination become irrelevant to the freedom of the Stoic, and so she can be perfectly
free while being complete dominated. “[W]hether on the throne or in chains, in the utter dependence of its
individual existence, its aim is to be free, and to maintain that lifeless indifference which steadfastly withdraws
from the bustle of existence, alike from being active and passive, into the simple essentiality of thought. Self-
will is the freedom which entrenches itself in some particularity and is still in bondage… As a universal form
of the World-Spirit, Stoicism could only appear on the scene in a time of universal fear and bondage” (Hegel
1977 [1807], §199).

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gift of Jean-Jacques’ education—, but the former depends on the political society he decides

to join.58

Although civil and moral freedom do not entail each other, Rousseau still thinks that

the Republic of the General Will (as I will call his model of the ideal polity) can realize civil

freedom while fostering the achievement of moral freedom for its citizens. His idea is

roughly this: An agent is morally free or autonomous if and only if the maxims of his actions

are his own, in the sense that he rationally endorses and is freely committed to them; this is

what makes the agent “truly the master of himself.” But if civil freedom or non-domination

is only possible in virtue of the limitations on action imposed by the general will (about

which everyone has an equal say), then those limitations are consistent with moral freedom

only to the extent that the agent accepts and, in a sense, internalizes them. A citizen who

enjoys civil freedom and sincerely endorses the constraints imposed upon all by the general

will is free in both the civil and moral sense; if he merely had a say on what those constraints

should be, without actually agreeing with what they turn out to be, he would still enjoy civil

freedom, but he would not also be morally free.59 If a political arrangement can be found

that meets both conditions, Rousseau would have shown that the life of civilized,

58 It is telling that Emile’s political education (the section of Emile where Rousseau offers a succinct
summary of The Social Contract) makes no mention of “moral” freedom. “Our principles of political right” are
only concerned with comparing “natural liberty to civil liberty” (E V, p. 461). This confirms my view that Emile
and The Social Contract are about moral and civil freedom, respectively, and that they belong together as an
account of how to become free in the full sense of the word, both as man and as a citizen. This is precisely
Rousseau’s promise in the opening pages of Emile: to show that it is possible to overcome the man/citizen
dilemma (E I, pp. 38-40).
59 Stilz, like most readers of Rousseau, assumes that “civil” and “moral” freedom must go hand in hand:
“I will realize that subjecting myself to fair and reciprocal laws is the only way to guarantee me the ability to
obey my own will, and so I should subjectively embrace the laws that grant it to me. If I do that, then I am also
obeying only myself when I obey the laws in an additional sense: I will the laws” (2009, p. 69). But one need
not go so far consistently with civil freedom as non-domination. I think it is a good thing that there be laws
protecting me from domination; I may even “will” the system of laws as such, but I do not have to regard my
compliance with a law I dislike as “obedience to my own will.” Refusal to identify so thoroughly with particular
laws seems perfectly consistent with being free in the civil sense.

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interdependent human beings can be free of domination or personal dependence as well as

autonomous. This is Rousseau’s maximalist ideal of complete or total freedom. In chapters

5 and 6, I will explain how Rousseau thinks it can be achieved, but my emphasis will be on

the attainment of civil rather than moral freedom.60 Because moral freedom is a matter of

the agent’s volitional structure, there is an important sense in which its full realization, like

that of psychological integration or the complete overcoming of self-alienation, transcends

the scope of politics. There are ways in which the Republic of the General Will facilitates and

promotes the achievement of moral freedom but this is not, I think, constitutive of its

legitimacy. Rousseau makes this quite clear through Jean-Jacques’ argument that even

illegitimate state can help us achieve psychological self-mastery. The passage is worth

quoting in full, as it fully captures the theoretical independence of political legitimacy and

moral freedom:

[F]or he who does not have a fatherland at least has a country. In any event,
he has lived tranquilly under a government and the simulacra of laws. What
difference does it make that the social contract has not been observed, if individual
interest protected him as the general will would have done, if public violence
guaranteed him against individual violence, if the evil he saw done made him love
what is good, and if our institutions themselves have made him know and hate their
own iniquities? O Emile, where is the good man who owes nothing to his country?
Whatever country it is, he owes it what is most precious to man—the morality of his
actions and the love of virtue. If he had been born in the heart of the woods, he would
have lived happier and freer. But he would have had nothing to combat in order to
follow his inclinations, and thus he would have been good without merit, he would
not have been virtuous; and now he knows how to be so in spite of his passions. The
mere appearance of order brings him to know order and to love it. The public good,
which serves others only as a pretext, is a real motive for him alone. He learns to
struggle with himself, to conquer himself, to sacrifice his interest to the common
interest. It is not true that he draws no profit from the laws. They give him courage

60 It is easy to see how a society that realizes civil freedom also tends to facilitate citizens’ internalization
of the laws and the legal order as “their own” through some sort of enlightened patriotism. For a compelling
account of constitutional patriotism roughly along these lines (and expressly indebted to Rousseau), see Stilz
2007.

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to be just even among wicked men. It is not true that they have not made him free.
They have taught him to reign over himself” (E V, p. 473; emphases added).

The legitimate society must make every citizen free in the civil, republican sense, and

it is one of its attractive features that it can also contribute to making them autonomous. But

that last point is a hope, a vision of what the perfect political life could be, rather than a

requirement of a decent social existence. Just as we may become morally free in illegitimate

political societies, so the state may remain legitimate despite our inability to overcome

slavery to our passions.

The interpretation I am sketching here is at odds with some of the most notable

contemporary readings of Rousseau’s political thought, including Rawls’s (2007),

Neuhouser’s (1993, 2011), Dent’s (2005), and Cohen’s (2010).61 These scholars adopt some

version of the “social autonomy” interpretation of Rousseau.62 The social autonomy

interpretation works, first, by emphasizing moral freedom as the distinctive achievement of

a legitimate political order and, second, by extrapolating from its psychological connotations

61 The republican interpretation I favor is most explicitly sketched by Pettit (2013, 2016), though it has
also been suggested by Douglass (2015, p. 127) and Stilz (2009, pp. 66-67). Neither Pettit nor Douglass or Stilz
discusses the relative merits of non-domination versus social autonomy as the best way to understand
Rousseau’s ideal of political freedom.
The sense in which I read Rousseau as a republican emphasizes the distinctiveness of civil freedom as
non-domination; this thesis is more specific, and more historically accurate, than Bloom’s version of that same
claim: “Rousseau is a republican; he is a republican because he believes men are naturally free and equal” (1987
[1963], p. 561). If natural freedom and equality sufficed to show an author’s republican credentials, then
Hobbes himself would also be a republican.
62 This is Cohen’s own term for his preferred reading of Rousseau (1986). It may seem odd for me to
extend the label to Neuhouser, who explicitly presents his “freedom-through-personal-independence model”
as an alternative to the social autonomy view (1996, pp. 367-372, 392). However, as I explain in the text,
Neuhouser’s proposal is a variation on the theme of social autonomy with its characteristic emphasis on a
political extrapolation of moral freedom at the expense of civil freedom or non-domination.

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to the political arena. The idea is this: if moral freedom requires, at the level of my individual

will, that I rationally endorse the principles on which I act and which impose order upon my

contingent impulses and desires, then its political correlate is the expectation that the laws

which constrain me may come to count as being my own will, as being willed by me. Thus

“social autonomy” mirrors psychological self-mastery. The social autonomy interpretation

requires that obedience to the laws “be construed as obedience to my own will.”63

Nowhere does Rousseau define moral freedom in this way, which is why I treat social

autonomy as an extrapolation from his psychological definition. The extrapolation is very

clear, though implicit, in Dent’s discussion, for instance. While he emphatically claims that

“this obscure notion of ‘moral liberty’ holds the key” to the Social Contract, the way in which

he translates that thesis into a standard for political justification goes well beyond

Rousseau’s definition of moral freedom as the opposite of “slavery” to the passions: “Only if

there is a bond of union with those with whom one is in society, so that their well-being

matters to you as some part of your own well-being, will acceptance of the restraints of law

not really be felt as a restraint but rather as the proper principle of one’s own goal and

volition.”64 The republican approach I favor does not purport to show that the laws are not

(or are not felt as being) constraints. There is no question that they are external constraints.

What they must not be is arbitrary, hence dominating, constraints, as I argue in Chapter 5.

63 Cohen 2010, p. 74. Nouhouser objects to Cohen’s version of requirement of social autonomy by
pointing out that “there must be a sense in which the general will can be said to be my will (one might say: my
deepest or truest will), even though I may lack the kind of subjective relation to it that is ordinarily taken to
constitute willing.” (1996, p. 370). That is, Cohen and Neuhouser disagree on what the answer should be to the
question, Must I consciously see the laws as expressions of my will for them to be expressions of my will? This
disagreement aside, they share the core commitment to an account of legitimacy that depends on the laws being
expressions of my own will, whether I must know them to be so or not.
64 Dent 2005, pp. 134 and 45, respectively. There is nothing “obscure” about moral freedom understood
as psychological self-mastery. What is far from clear is Dent’s claim that from that idea it follows that legitimate
laws “are to be experienced as the principle of one’s own will rather than as a restraint” (op. cit., p. 46).

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The social autonomy thesis finds some textual support wherever Rousseau appears

to endorse the incredibly high standard of legitimacy that this interpretation entails, e.g.:

“What, then, is, properly, an act of sovereignty? It is not a convention of the superior with

the inferior, but a convention of the body with each one of its members… So long as subjects

are subjected only to conventions such as these, they obey no one, but only their own will” (SC

II.4.8). If the social autonomy approach were alone capable of making sense of passages such

as this one, there would be much to recommend it. But as I will argue in section 5.3, I do not

think this is at all the case. The republican interpretation, which focuses on civil freedom

rather than a “social” projection of moral freedom, can make good enough sense of what

Rousseau means in his declarations that the law expressing the general will is somehow my

own will, as I discuss at legnth in section 6.1.65

If Rousseau so clearly distinguishes civil and moral freedom, why should interpreters

have been led to neglect the former in favor of a social analogue of the latter? I think there

65 This is a good example of how the social autonomy interpretation has led scholars to set unreasonable
theoretical expectations for an adequate reading of Rousseau: “The entire logic of majority rule, then, depends
upon the view that the outvoted citizen recognizes that if he had prevailed, he would not have been
autonomous” (Schwartzberg 2008, p. 415). This is the sort of framework that saddles Rousseau with unsettling
talk of “real” and “true” selves, feeding into Isaiah Berlin’s assimilation of Rousseau to other totalitarian
theorists of “positive” freedom (2002 [1952]). If not by reference to the dubious notion of “true” self, how else
can one even begin to make sense of the idea that I would not be autonomous in doing what I want and think I
should do just because I happen to be in the minority on a given issue?
Sure enough, that is exactly what Sreenivasan—who also endorses the social autonomy
interpretation—argues in connection with the general will: “What the associate’s common self wants is given
by the general will. Now if an associate’s true self and his common self were one and the same—or if the former
at least comprised the latter—then his true self would always want what his common self wants… Thus, in
obeying “the general will,” whatever that may be, an associate would be obeying his true self alone… So
Rousseau’s fundamental problem admits of solution if—and only if—each associate’s true self can be identified
with his common self, or at least weakly identified with it” (2000, pp. 550-551). The root problem with
Sreenivasan’s approach to Rousseau is his misconstruction of the fundamental political problem, also
representative of the social autonomy interpretation: as he puts it, a contractor has to do two things “each of
which he must do. They are (i) to join some political society and (ii) to obey only himself” (p. 557). My view, by
contrast, is that the contractor must join some political society and not obey a foreign, arbitrary will. The heart
of the disagreement is that I do not have to obey only myself in order to satisfy the condition of not obeying an
alien, foreign will.

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are three reasons why this has come to be the predominant approach to The Social Contract.

The first is the widespread assumption that there are only two concepts of freedom: freedom

as non-interference and freedom as self-mastery, or freedom as obedience to one’s own will

alone. Whereas freedom as non-interference more or less corresponds to Rousseau’s

“natural” freedom, freedom as self-mastery closely approximates his “moral” freedom.66 If

these alternatives are thought to be exhaustive of all possible conceptions of freedom, it is

only to be expected that the idea of civil freedom should receive little attention, as it is neither

a form of non-interference nor anything like a single-minded interest in self-mastery or self-

control.67 The second reason is that the very term “self-mastery” is ambiguous. In one sense,

it describes the volitional ideal of psychological self-control that I have associated with

Rousseau’s moral freedom. But in another sense, it can refer to a non-psychological fact

about a person who can do whatever she likes without having to obey anyone else or, indeed,

any constraint other than the physical limitations of the natural world; this is an individual

who, literally, only obeys her own will.68 I suspect that this ambiguity is what explains the

ease with which Rawls, Cohen, Neuhouser, and others talk about “social” autonomy as

modelled on the psychological autonomy of which Rousseau speaks in connection with

moral freedom. If the negative/positive freedom dichotomy inclines some readers to take

moral freedom as Rousseau’s central concern and if, further, the ambiguous idea of self-

66 I say “more or less” because, arguably, freedom as non-interference can be curtailed by threats,
whereas Rousseau’s “natural” freedom only seems to be lessened by physical obstacles.
67 For the influential distinction between the two supposedly exhaustive notions of “negative” and
“positive” freedom, see Berlin (2002 [1958]). That Berlin’s distinction excludes (and contributes to obscuring)
the republican conception of freedom has been persuasively argued by Skinner (2002) and Pettit (1997, pp.
17-31).
68 Notice how the second notion of self-mastery still misses the mark of civil freedom. If anything, it
resembles Rousseau’s natural freedom. The ambiguity in question is evident in Berlin’s discussion of positive
liberty in general (2002 [1958]) and in his own treatment of Rousseau (2002 [1952]).

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mastery explains how it is projected onto a “social” standard of autonomy, civil freedom is

bound to seem superfluous or redundant. This is the third reason why the social autonomy

approach has taken hold. Once you accept its proposed standard of legitimacy, it will always

entail civil freedom. If the laws are your own will, then of course they are not an alien,

dominating will. Non-domination is a necessary byproduct of social autonomy, but a

byproduct all the same. There is no need to offer any independent argument for how it is

achieved or why, not even for what is its proper place in Rousseau’s theory, once one puts

on the lens of social autonomy. It is no surprise that the term “civil freedom” does not even

come up in Cohen’s book-length account of Rousseau’s political thought and that Rawls only

mentions it in passing to point out that it is always realized conjointly with moral freedom.69

Of the social autonomy interpreters, Frederick Neuhouser comes closest to the

republican reading when he acknowledges that the state is a “precondition” of our civil

freedom as well as “constitutive” of our moral freedom.70 However, Neuhouser does not

seem to fully appreciate how very different the two concepts are, and so suggests that they

are best understood as “objective” and “subjective” “aspects” or “species” of autonomy. 71

And indeed, under a certain interpretation of what “self-mastery” means, it may appear that

civil and moral freedom are two sides of the same coin rather than distinct, if

complementary, ideas. If civil freedom means not being subject to an alien will, is not

69 See Cohen 2010. Rawls simply says that in the Rousseauian ideal, “both our moral and our civil
freedom are, if possible, fully realized” (2007, p. 221). Oddly enough, Rawls correctly identifies Rousseau’s
preoccupation with domination; he realizes that the society of the general will frees citizens from “the
particular and arbitrary wills of other specific persons” (ibid.). But, as I say, this is just what we get in constant
conjunction with what Rawls takes to be the truly salient achievement of the Republic of the General Will—that
obedience to the laws is obedience to our own, individual wills.
70 Neuhouser 1993, p. 392.
71 Op. cit., pp. 392-393.

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subjection to one’s own will alone the only alternative to that? Is not social autonomy the

only way not to be dominated? This is precisely Neuhouser’s view, for whom moral freedom

is the perfect and necessary “positive” complement of the “negatively defined concept” of

civil freedom.72 But this is incorrect. It is not the case that every time I obey something other

than my will and I am therefore, and for that reason, dominated. When Neuhouser writes

that “The free individual is one who obeys only his own will, or more explicitly, one who

obeys no will other than his own,” he equates what Rousseau meant to distinguish.73

What is salient about non-domination is not that every constraint on my choices

comes “from my own will only”; rather, the point is that I should face no arbitrary constraints

on what I can do, no constraints that are both intentional and completely beyond my control

(I elaborate on this idea in section 5.3). It follows that obedience to non-arbitrary constraints

on what I can do is consistent with civil freedom even if said constraints cannot possibly be

identified with my own will. What explains the master’s domination of the slave is not so

72 Ibid.
73 Op. cit., p. 381. See also p. 393: “Being free of constraints imposed by the wills of other individuals and
being subject only to self-given laws are merely two different ways of satisfying the basic condition of freedom,
which stipulates that one obey no will other than one’s own.” The same false equivalence reappears in
Neuhouser’s book-length reconstruction of the argument of the Second Discourse: “The essential characteristic
of freedom in all its form is ‘obeying only oneself’ (SC, I.6.iv), as opposed to obeying the wills of others” (2014,
p. 125).
Neuhouser defends the social autonomy approach again in a more recent paper on Rousseau. There,
the issue is not that he misses the idea of non-domination (“there is a certain condition in the world, describable
as an avoidance of enslavement, that human autonomy can bring about,” 2011, p. 484; “), but that he again fails
to identify it with the civil freedom of The Social Contract: “The Discourse’s central idea of social domination
implicitly rests on a conception of freedom—freedom from domination—that is different from any I have
mentioned thus far [i.e., different from the ideas of freedom in the SC], and this proliferation of conceptions of
freedom is what makes Rousseau’s theory of autonomy so difficult to grasp.” (2011, pp. 484-485). Perhaps the
problem is that Neuhouser misunderstands the republican idea of domination, which for him involves
“willingly obeying the command or expressed desire of another person” (ibid.). But I do not need to “willingly”
obey a command to be subject to another’s will: if I get to do something I want only because someone else,
perhaps a stronger party, has been benevolent enough to allow me to do it, then my action was still under that
other person’s (virtual) control. I may be dominated without a single command being issued, as Rousseau’s
“slave to whom nothing has been commanded” (E V, p. 445) reminds us. What is more, I may be dominated
without even knowing it (Pettit 1997, Chapter 2).

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much that the former’s decisions are completely external to the latter’s will; after all, the laws

of nature also constrain the slave and are just as external to him, but they do not dominate

him. Rather, the fundamental problem lies in the arbitrariness of the master’s will. There is

nothing the slave can reasonably expect for his future: everything will always depend, at

every turn, on the capricious mood of the master, a master who is in no way constrained or

even induced to respect or advance the interests of the slave. The slave is at the mercy of a

completely alien arbitrium.74

Arbitrariness, then, is central to domination, the absence of which constitutes civil

freedom. But—and this is the crucial point—it is not necessary for a constraint to be “my

own will” for it not to be arbitrary. Thus, limitations on what I do are consistent with my

civil freedom even if they do not pass muster by the implausibly high standard of the social

autonomy interpretation of Rousseau. It is precisely in virtue of this possibility that there

can be non-dominating forms of political authority, of which the Republic of the General Will

is the paradigm.

74 In his latest book on the Rousseau, Neuhouser reluctantly concedes that the republican interpretation
is the correct reading of the freedom that matters to Rousseau’s Social Contract. He concedes it insofar as he
gives non-domination a central place and locates Rousseau in the republican tradition (2014, p. 126). The
reluctance comes out in his effort to deny that arbitrariness is central to domination. Neuhouser’s efforts to
distinguish Rousseau from “mainstream” republicans fail because what he takes to be an objection to the line
of thought I am defending is in fact a restatement of its central contention, to wit: “Yet—and this is the decisive
point—there is still domination (assuming I am an adult) even if what that will commands me to do promotes
my interests: regularly obeying a will other than my own constitutes a violation of free agency, even when the
will I obey is benign” (op. cit., p. 129). I am sure Rousseau, Sidney, Skinner, and Pettit would all agree, as do I.

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4.4 A New Social Contract

I argued in connection with his conjectural history that Rousseau’s social contract

takes place among already civilized individuals who live in some form of political society, are

in possession of fully developed cognitive powers, and motivated by amour propre and

rational prudence. Rousseau’s social contract, then, is less an account of how political society

arises, and more of a positive proposal for how civilized politics can be transformed.

Rousseau is speaking to the civilized individual already immersed in some (defective)

political society when he remarks that “as long as a People is compelled to obey and does

obey, it does well; as soon as it can shake off the yoke and does shake it off, it does even

better” (SC I.1.2). People do “well” to obey for reasons of expediency (as they would

presumably endanger their own lives it they rebelled against the powers that be), but this

does not mean that the powers that be are legitimate and so entitled to their obedience.

For exegetical purposes, we can assume that the political status quo of civilized

individuals, the addressees of The Social Contract, closely resembles the Second Discourse’s

iniquitous “contract” that the rich invented to dominate the poor (SD II.30-33) and that

“henceforth subjugated the whole of Mankind to labor, servitude, and misery” (SD II.33,

emphasis added). Rousseau categorically rejects the purported legitimacy of such an

arrangement, which is nothing but an attempted validation of—an ideological façade for—

the rule of sheer force. And for him, force by itself has no normative import whatsoever:

“Force is a physical power; I fail to see why morality can result from its effects” (SC I.3.1).75

75 Rousseau offers a nice reductio of the equation of power and right: “But what is a right that perishes
when force ceases?… Clearly, then, this word “right” adds nothing to force; it means nothing at all here” (SC
I.3.2). Rousseau is right to put his finger on the implausibility of any claim to authority such that its putative
normative effects correlate exactly with, and extend no further than, the efficacy of physical compulsion. The

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This is why the Social Contract seeks to “make” legitimate the bonds of political association

that already exist, but are unjustifiable in their current form: “Man is born free, and

everywhere he is in chains… How did this change come about? I do not know. What can

make it legitimate? I believe I can solve this question” (SC I.1.1, emphasis added).76

Crucially, the fact that the poor might have agreed to this arrangement of subjection

and “servitude” is, for Rousseau, beside the point, and carries no legitimating effects

whatsoever. The “consent” that the poor and destitute may have given can only be explained

as a function of deception, adaptive preferences, extortion, or all of the above. The deceptive

aspect of the “contract” presented in the Second Discourse is apparent when Rousseau

describes the way in which the rich got the poor to agree to their proposed scheme: the

former resorted to “specious reasons to bring [the latter] around” (SD II.31). This was

possible because we are dealing here with “crude, easily seduced men” who “had not enough

experience to foresee its dangers” (SD II.32). The poor had probably come to accept their

lot, their overwhelming personal dependence on the rich; freedom mattered little to them

because they had lost it long before (SC II.38).77 More importantly, the only plausible

explanation for such an iniquitous contract to have ever taken hold is that the poor’s

alleged “right” would add nothing to force, except perhaps facilitate its deployment (i.e., reduce the cost of its
exercise) through ideologically-induced acquiescence.
76 See p. 187n37 on the consistency between Rousseau’s professed ignorance in this passage and the
conjectural history of the Second Discourse. There are two ways to interpret Rousseau’s use of the image of
“chains” (fers) to characterize the present state of civilization. On the one hand, the term can be taken in a
purely descriptive manner, stating the fact that civilized man is no longer in a condition of natural liberty. So
understood, there is nothing pejorative about the “chains.” On the other hand, the image is clearly evocative of
brute physical power, even slavery. The question, “What can make it legitimate?” indicates that the present
condition is illegitimate. In a parallel passage from Emile, the implicit condemnation of society’s chains is
similarly clear: ““Civil man is born, lives, and dies in slavery. At his birth he is sewed in swaddling clothes; at
his death he is nailed in a coffin. So long as he keeps his human shape, he is enchained by our institutions” (E I,
pp. 42-43). As in Emile, I think Rousseau uses the image of chains in the opening statement of The Social
Contract with a pejorative connotation.
77 On Rousseau’s awareness of the problem of adaptive preferences, see p. 162n2.

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“consent” must have been the result of compulsion or coercion. But, Rousseau insists, “To

yield to force is an act of necessity, not of will” (SC I.3.1).

Rousseau’s rejection of the normative effects of submission as “an act of necessity”

reveals his commitment to a far more robust idea of consent than the account we found in

Hobbes. The idea that an act of will properly so-called is inconsistent with necessity of the

kind at hand strongly indicates that Rousseauian consent is only valid under circumstances

where the agent has reasonable alternatives. An act of valid normative consent must be

intentional but also voluntary in a sense that Hobbes does not consider, namely, as requiring

the possibility of choosing from a set of reasonable options (where the standard of

reasonableness involves non-prohibitive costs to one’s well-being such as death or material

destitution).78 Rousseau’s view of valid consent—an “act of will” as opposed to an “act of

necessity”—rules out the Hobbesian idea of sovereignty by acquisition and, a fortiori,

Hobbes’s contention that a putative sovereign’s effective monopoly of force counts as

evidence or sign of actual underlying consent. Rousseau’s argument is precisely that when

the vanquished submit, yield or acquiesce to the conqueror, they cannot be said to do so

“voluntarily”: “the Right of conquest, since it is not a Right, could not have served as the

foundation for any other Right, for the Conqueror and the conquered Peoples always remain

in a state of War with one another unless the Nation, restored to its full freedom, voluntarily

chooses its Victor as its Chief” (SD II.35; emphasis added)—that is, unless the vanquish have

a reasonable alternative to submitting to their conqueror.

78 Rousseau does not develop a full theory of consent. I here follow the ideas proposed by Oslaretti
(2008). I do think that Rousseau must have some such notion of consent in mind when he criticizes Hobbes,
Pufendorf, and Grotius on the questions of slavery and submission to any absolute sovereign other than the
assembly of the whole. For a similar attribution of a strong notion of consent to Rousseau, see Rawls 2007
[1971], p. 217.

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While Rousseau denies that the state-as-instrument-of-class-rule of the Second

Discourse was ever validly consented to, he nevertheless believes—with Hobbes—that

unanimous consent is indispensable for any agency to have the right to perform as a state.

As I interpret Rousseau, consent for him is normatively valid, and therefore legitimizing, if

and only if two conditions are met. First, the act of consenting must be voluntary (an act of

“will” and not “necessity”), meaning that it must be both intentional and given in a situation

where the agent had reasonable alternatives. But second, the object of consent must exclude

the complete alienation of one’s freedom or power of choice. One cannot validly consent to

becoming alieni iuris, not even if the act is unquestionably voluntary. In other words, civil

freedom as such is a substantive constraint on eligible objects of consent.79

Rousseau argues for this constraint on objects of valid consent in his critique of the

doctrine of legitimate slavery defended by Hobbes, Pufendorf, and especially Grotius (e.g., SC

I.4.2). Grotius claimed that it was possible for an individual to voluntarily enslave himself by

a total and perpetual alienation of his will.80 Against this view, Rousseau claims that

alienating one’s freedom in this way is “absurd and inconceivable; such an act is illegitimate

and null” (SC I.4.4) on three grounds: that one’s freedom is not the sort of thing that can be

transferred or alienated; that it is contradictory to choose to alienate one’s power of choice

79 This last point is a further—and decisive—objection to Berlin’s contention that Rousseauian freedom
can be attained by “choosing” one’s “chains” (see p. 196n54).
80 For a helpful discussion of Grotius’ argument, see Wokler 1995, pp. 57-60. Rousseau’s critique of
Grotius closely resembles Locke’s and Barbeyrac’s arguments against the normative validity of voluntary
servitude.
It is important to specify that Rousseau’s argument is intended against complete and perpetual
alienations of freedom, lest his view leads to rejecting the validity of any kind of commitment or contractually
acquired obligation to perform or abstain from performing future actions. When Rousseau says that “it is
absurd for the will to shackle itself for the future” (SC II.1.3), I take him to mean that it is absurd for one to bind
oneself indefinitely into the future or in perpetuity. Otherwise, one would have to assume that “Rousseau’s
argument applied to contracts where will is transferred (as opposed to other goods transferable by contract)”
(Douglass 2015, p. 125), which has the extremely implausible implication that Rousseau would disallow even
the simplest services or labor contracts!

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in perpetuity; and that the willingness to enslave oneself only makes sense as an act of

necessity or as a sign of madness, and in neither case can the act of consent be valid.

The first argument is based on the idea that an agent’s relation to his own freedom

cannot be modeled on ownership. What I own I can also alienate, but I do not actually “own”

my freedom. It is more accurate to say that my freedom is constitutive of who I am, and so

not the sort of attribute with which I can part voluntarily: “since the Right of property is only

by convention and human institution, every man can dispose of what he possesses as he

pleases; but the same does not hold for essential Gifts of Nature, such as life and freedom”

(SD II.42). This constitutive relation between being free and being a person also explains the

deep contradiction in the idea that I could perpetually alienate my own freedom. “To

renounce one’s freedom is to renounce one’s quality as man” (SC I.4.6), to renounce “his I,

and all morality in his actions” (E V, p. 460). It is a complete (volitional) contradiction for a

person to exercise free choice in order to give it away, especially since freedom is the defining

attribute of humanity. For all its rhetorical force, there is also a literal truth in the claim that

selling oneself as a slave is tantamount to deciding not to be a person any longer—and to do

so by exercising the constitutive capacity of personhood, that is, free choice.

As for the third argument, I think Rousseau’s reasoning is roughly as follows. Since

“There can be no possible compensation for someone who renounces everything” (SC I.4.6),

and to part with one’s freedom is to renounces everything, voluntary servitude cannot

plausibly be assimilated to a transaction of mutual advantage. If nothing has value enough

to be worth giving up my freedom for, the fact that somebody “consents” to self-enslavement

must be taken as evidence that this person had no reasonable alternative or that she is

deranged. Freedom is not only incommensurable, but also incomparable and inestimable:

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there is nothing of enough value that could come close to compensating for a total and

perpetual loss of freedom. “To say [that] a man gives himself gratuitously... is to assume a

people of madmen,” but “madness does not make right” (SC I.4.4). Madness is an incapacity

to properly exercise free choice and hence it vitiates consent at its root.81 If the voluntary

slave is not insane, then the only other possible explanation for his choice is that his hand

was forced (so to speak) by “necessity,” which is to say that he had no reasonable alternative

and so the act cannot even be treated as voluntary. Qua non-voluntary, it is also invalid in its

supposed normative effects. Whether as a result of war (“a slave made in war or a conquered

people is not bound to anything at all… they continue in a state of war as before,” SC I.4.12)

or because facing the prospects of material destitution, the individual encountered such

prohibitively costly alternatives to voluntary servitude, that his choice fails to generate a

right for the master or a duty on him as a servant. “These words slavery and right are

contradictory; they are mutually exclusive” (SC I.4.13).82

I have argued that Rousseau has a more demanding account of consent than Hobbes’s,

the most important implication of which is that nobody can voluntarily submit to the will of

81 Even Hobbes would agree with this, as indicated by his argument to the effect that “children, fools, and
madmen” can only be personated by their “guardians or curators” precisely because they are (temporarily)
incapable of begin responsible agents in their own right (L XVI.10). See Chapter 3.1 for a discussion of children
fools, and madmen as persons by analogy in the context of Hobbes’s theory of personation.
82 Rousseau expands on this argument by detaching the right to kill in war from the alleged right to
enslave the vanquished: “One has the right to kill the enemy only when one cannot make him a slave. Hence
the right to make him a slave does not derive from the right to kill him: it is therefore an iniquitous exchange
to make him buy his life, over which one has no right whatsoever, at the cost of his freedom” (SC I.4.11). As in
his argument about the incommensurable value of freedom, Rousseau draws on the view that the validity of an
exchange is conditional on some implied norm of value proportionality or equity: “it would be difficult to show
the validity of a contract which obligated only one of the parties, in which one side granted everything and the
other nothing, and which could only prove prejudicial to the one who commits himself” (SD II.41). “Your life
or your freedom” is an impossible choice, one which nobody has the right to impose upon anybody else.
Consequently, no rights or obligations can possibly arise out of it.

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another.83 What is important for Rousseau is that this normative impossibility is not

restricted to individual cases of voluntary servitude. It applies to human groups as well (SC

I.4.4.). For Rousseau, a form of political rule in which a group of individuals submits to the

arbitrary will of a ruler or master is nothing but an instance of political slavery or

domination.84 When political authority takes the form of an alien and arbitrary will, we have

a situation of personal domination writ large. But, as Rousseau puts it, “There will always be

a great difference between subjugating a multitude and ruling a society” (SC I.6.1). Political

domination, because it consists merely on an aggregation of individual choices of self-

enslavement, is not a possible object of valid consent.85

This is why Rousseau rejects the claim that the state-as-instrument-of-class-rule of

the Second Discourse was legitimate because it was consented to. Such a state was not even

an eligible object of consent precisely because it is a paradigmatic instance of political

domination. However, Rousseau still believes that unanimous consent is necessary for any

agent or agency to have the right to perform as a state: “There is only one law which by its

nature requires unanimous consent. That is the social pact… If then, at the time of the social

pact there are some who oppose it, their opposition does not invalidate the contract, it only

keeps them from being included in it; they are foreigners among the Citizens” (SC IV.5-6).

Now, as I have argued above, this is not because this convention is created ex nihilo, in a state

83 That is, such “voluntary” submission carries no normative effects. Of course people can (in a non-
normative or sense) submit to another’s will; Rousseau’s point is that such an act never issues in legitimate
relations of authority.
84 The idea that that there are two forms of domination, personal and political, is suggested in Emile:
“Since with the age of reason civil servitude begins, why anticipate it with private servitude?” (II, p. 89).
85 See Chapter 4.3 for a discussion of Rousseau’s explicit characterization of illegitimate power as
“arbitrary” and of despotic governments as dominating powers (irrespective of their actual acts of
interference). The argument against the possibility of voluntary servitude highlights the common logic
underlying Rousseau’s preoccupation with both personal and political domination.

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of nature where everyone is naturally free. Consent is necessary because political

association will always involve subjecting oneself to external norms—to civil laws—and this

allegedly non-dominating form of authority can only be consistent with civil freedom if one

agrees to it voluntarily.

If we pull together the main threads of the argument thus far, we can say that

Rousseau sets himself the task of designing a form of political association that observes two

constraints:

Voluntarist Constraint: The terms of political incorporation must be such that they

can be validly consented to, and advantageous enough so that people will in fact consent to

them. In other words, (i) consenting must not be an “act of necessity” and (ii) the terms of

the compact must exclude the total and perpetual alienation of any associate’s freedom.

Non-Domination Constraint: The terms of political incorporation must make it

possible for every associate to enjoy civil freedom under conditions of social

interdependence. This will require restructuring the inequalities that turn individual non-

autarky into a systematic occasion for personal dependence or domination. It will also be

necessary to structure political authority in such a way that the constraints it imposes upon

the associates in the form of civil laws do not constitute yet another form of domination.86

86 The rationale for the Non-Domination constraint is transparent in light of the argument of the
preceding two sections (4.2 and 4.3): since individual autarky is impossible in the current stage of civilization,
the possibility of civil freedom hinges on rendering non-domination compatible with social interdependence.
If the social contract were to substitute state domination for widespread personal domination, it would be a
self-defeating solution (hence the explicit constraint of political non-domination).
Notice that the Non-Domination Constraint demands less than the social autonomy interpretation as
outlined in section 4.3. On that view, it would be necessary to add a third constraint—call it the Autonomy
Constraint—to the effect that the civil laws (or “limitations of the general will”) are such that citizens can
internalize and endorse them as willed by them individually, so that in obeying them they are only obeying
their own (individual) wills.

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These are precisely the constraints that Rousseau models by adopting a contractualist

mode of argument in which his proposed political institutions are justified to rational and

self-interested contractors. He accordingly outlines his project thus: “To find a form of

association that will defend and protect the persons and goods of each associate with the full

common force, and by means of which each, uniting with all, nevertheless obey only himself

and remain as free as before” (SC I.6.4).87 As I explained in section 4.2, the modern, civilized

individual whom Rousseau takes himself to be addressing is much like the average

inhabitant of the Hobbesian state of nature, and so the contractualist argument in Rousseau

minimizes the appeal to other-regarding motivations: it attempts to show why the Republic

of the General Will is an “advantageous exchange” (SC II.4.10) for all. “It is not a matter of

teaching me what justice is; it is a matter of showing me what interest I have in being just”

(GM I.2.14).88 Rousseau is by no means recanting his account of human psychology in the

87 Rawls is correct to take notice of Rousseau’s typically contractualist “normalization of interests

attributed to the parties to the contract” (2007 [1971], p. 226).
88 Patrick Riley has criticized the contractualist aspect of Rousseau’s argument on the grounds that it is
incompatible with the “morality of the common good” that The Social Contract allegedly intends to revive:
“Rousseau may have made errors in analyzing the unified spirit of ancient politics by recognizing the desirable
effects of a morality of the common good without recognizing that the very absence of a notion of individual
will as supreme had made that morality, and thereby that unity, possible… [T]he problem of political theory,
above all in the Contrat social, is that of reconciling the requirements of consent, which obligates, and perfect
socialization, which makes men one. Men must somehow choose the politically perfect, somehow will that
complete socialization that precludes self-division. Will, though the basis of consent, cannot be left as it is in
some contract theory, with no proper object” (1982, p. 108).
There are three issues with Riley’s critique of Rousseau (apart from his over-simplified
characterization of “ancient politics”). First, it misrepresents the role of the contract as a justificatory device
that allows Rousseau to persuade modern, civilized individuals who have no such “morality of the common
good,” to consent to the terms of association characteristic of the Republic of the General Will (cf. Douglass
2015, pp. 113-114). Only thus can the theory have its intended practical effect—to make modern day political
society legitimate (SC I.1.1). Second, it is not true that “mere will” can validate any object; as we have seen,
Rousseau’s idea of consent explicitly excludes voluntary servitude. Rousseau’s standard of valid normative
consent has more substantive moral content than Riley acknowledges. And third, there is no inconsistency
whatsoever in justifying the institutions of the Republic of the General Will (i) from the point of view of self-
interested contractors and (ii) from the point of view of the participant, i.e. the already socialized and virtuous
citizen who wills the general will. For an excellent elaboration of the possibility of justifying the Republic of
the General Will on both levels, see Cohen 1986 (pp. 279f) and 2010 (pp. 86-96).
Riley’s interpretation is especially relevant to what I call in the text the maximalist ideal of complete
or total freedom (see section 4.3). The republican interpretation, because it focuses on civil freedom rather

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Second Discourse, particularly in relation to compassion and its moralized expressions in

civilized individuals; he is merely setting a higher justificatory bar, requiring that the theory

of legitimacy be satisfactory even for individuals who are not particularly moved by other-

regarding concerns, like his European contemporaries.89

than the achievement of full virtue, can more comfortably make sense of the role of the contractualist mode of
justification in Rousseau. Riley’s objection does, however, get at a very important issue for Rousseau: that the
ideal political society is one in which our collective choices, which legitimize the state, are also the best, making
the state just. I return to this point in section 6.3.
89 This is not to say that the motivational profile of a typical contractor is good enough for Rousseau. On
the contrary: the stability of his proposed form of political association will depend on citizen’s ability to develop
virtuous dispositions and strong other-regarding motives. Self-interest alone always seemed to Rousseau a
hopelessly weak form of social bond (Preface to Narcissus §§27-29).

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CHAPTER 5. THE REPUBLIC OF THE GENERAL WILL

As I argued in chapter 4, Rousseau’s framing of the problem of legitimate political

authority is tied to the ideal of civil freedom and the challenges of its realization in a social

world of deeply interdependent individuals. Chapter 5 outlines some of the fundamental

institutional attributes of the only form of public authority that can solve Rousseau’s

problem: the Republic of the General Will. I argue that Rousseau’s understanding of the

institutional profile of a legitimate state is significantly indebted to Hobbes and the political

ontology grounded in his theory of personation. Rousseau’s originality lies in the fact that

his vision of legitimate statehood ensures the constant conjunction of the right to perform as

a state and a reliably just use of state power. Whereas the Hobbesian state could be

profoundly iniquitous without in any way compromising its legitimacy, Rousseau’s Republic

of the General Will is set up in such a way that it will exercise its legitimate power almost

always justly.

Section 5.1 explains the constitutional structure of the Republic of the General Will,

premised on two core commitments of Rousseau’s: (i) the endorsement of the absolutist idea

of sovereignty Hobbes refined after Bodin and (ii) his defense of a moralized model of

consent, one which expressly rules out the possibility of validly consenting to submission to

an alien will. Jointly, these premises entail that that popular sovereignty is the only

legitimate form of statehood. One important innovation of Rousseau’s constitutional theory

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is the application of a principled distinction between legislation and execution to an

absolutist view of sovereignty, with the resulting institutional distinction between sovereign

and government. Only the people can be a legitimate sovereign because sovereignty is

inalienable, but they can nevertheless delegate their executive authority; there can be, in

other words, an independent government, though one whose standing is entirely dependent

on the sovereign’s will. Contrary to what Richard Tuck has recently argued, I think Rousseau

adopts the law/decree distinction from Locke and Montesquieu, not from Bodin and Hobbes.

Though Rousseau’s idea of sovereignty and his background political ontology are Hobbesian

through-and-through, his ideas of consent, law, and political freedom are not.

Section 5.2 focuses on a crucial yet elusive dimension of Rousseau’s thought—the

idea of the “general will.” In my view, the transcendental, proceduralist, and public reason

interpretations to the general will are inadequate, as neither can account for all that

Rousseau says about the general will. The approach I propose drops the assumption that

every usage of the phrase “general will” in Rousseau’s texts tracks one and the same idea.

Depending on the context, Rousseau has in mind a psychological, objective, or procedural

notion of the general will. Though not identical, they are of course deeply related: the

objective general will is a negative regulative principle for the procedural specification of the

common good, which is most likely to be attained insofar as citizens think in terms of the

good of all. The procedural dimension of the general will—especially in regard to the non-

facionalization of the assembly—is undoubtedly crucial, but insufficient to make full good

sense of Rousseau’s complex notion of the “general will.”

Section 5.3 draws on Rousseau’s constitutional theory and on my proposed reading

of the general will in order to provide a complete answer to the problem posed at the end of

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Chapter 4: how can the Republic of the General Will solve the problem of domination in the

current stage of civilization? The answer must be broken down into two components. First:

the Republic of the General Will solves the problem of interpersonal domination through the

rule of law, that is, by assuring each and every citizen of a protected sphere of action within

which they can act without subjection to the will of other persons. The rights defined by laws

that apply to all make each of us free. Second: the Republic of the General Will manages to

do this without itself constituting a form of political domination. To see how this is possible,

I draw on Emile to illustrate the possibility of intentional forms of non-arbitrary interference.

The law is non-arbitrary just in case it mirrors the generality and impersonality of the laws

of nature and remains within the joint intentional control of the sovereign people. In sum,

popular sovereignty, the rule of law, and sovereign control over an independent government

jointly ensure that citizens are not dominated “from above.” When the law “applies to all”

while “coming from all,” it is consistent with, indeed constitutive of, our civil freedom. The

Republic of the General Will does not leave us “as free as before”; better still, it makes us free

in a way in which we could not have been in a stateless condition.

5.1 The Sovereign People

The main thesis of The Social Contract is that there is only one form of political

association that satisfies the voluntarist and non-domination constraints while achieving the

ends for which a contractor would freely agree to join it. This form of association I will call

the Republic of the General Will, and it is characterized by four essential institutions: the

sovereignty of the people, the general will, the rule of law, and the independence of

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government. In the remainder of Part II I will discuss these four institutional aspects of

Rousseau’s political project in turn. I will often refer to continuities as well as differences

between Rousseau’s and Hobbes’s ideas in order to motivate what I think is quite an original

dimension of Rousseau’s theory—namely, that the legitimate state is designed in such a way

that its exercise of political power is almost always just. Unlike Hobbes, Rousseau

systematically attempts to incorporate the quality of the state’s performance into the very

conditions that constitute its right to perform as a state.

Before turning to Rousseau’s argument for popular sovereignty, I would like to

consider a natural objection that arises given the need for unanimous consent to legitimize

the Republic of the General Will. We can all agree that in modern conditions of

interdependence, political society is invariably advantageous for the contractors (SC I.6.1-3).

The problem is this: if we follow Rousseau in acknowledging that civilized individuals are

always already in some form of political community or other, then there never actually was

an occasion to consent to their present political institutions, nor will there be such an

opportunity in the future even if those institutions are endogenously reformed in a

Rousseauian direction, e.g., by a unilateral and benevolent decision of the powers that be.1

Rousseau’s answer is that there are in fact two ways in which civilized individuals can

consent to the Republic of the General Will. On the rare but by no means unthinkable

occasions when there is a genuinely founding contract, they can expressly and freely agree

to its terms.2 Alternatively, “Once the State is instituted, consent consists in residence; to

1 A version of this argument was famously put forth by Hume in his essay “Of the Social Contract”: “such
an implied consent can only have place, where man imagines, that the matter depends on his choice. But where
he thinks (as all mankind do who are born under established government) that by his birth he owes allegiance
to a certain prince of certain government; it would be absurd to infer a consent or choice, which he expressly
in this case, renounces and disclaims” (Hume 1994 [1748], p. 193).
2 Such opportunities existed even for civilized individuals not long before Rousseau’s time. See p. 82n27.

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dwell in the territory is to submit to the sovereign” (SC IV.2.6).3 Of course, Rousseau is aware

that this form of consent is only valid if the citizens have reasonable alternatives: if they do,

then their refusal to take them counts as a sufficient sign of their voluntary and normatively

valid agreement to the terms of political association. This is why tacit consent is only

possible in “a free State; for elsewhere family, goods, the lack of asylum, necessity, violence,

may keep an inhabitant in the country in spite of himself, and then his mere residence no

longer implies his consent to the contract” (SC IV.2.6n). To be precise, tacit consent is

possible just in case there is at least one other political community that dissenting citizens

are in a position to opt for.4 As we shall see, Rousseau deploys the model of silence in the

face of reasonable alternatives—what Bodin called “sufferance”—not only to account for the

consent of individuals to the state, but also for that of the sovereign people to its government:

“tacit consent is presumed from silence, and the Sovereign is assumed to be constantly

confirming the laws which it does not abrogate when it can do so” (SC III.11.4). Because the

Republic of the General Will is a “free State,” everyone has (and will continue to have) ample

3 Rousseau is obviously drawing on Locke’s theory of tacit consent: “every Man, that hath any
Possession, or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit Consent,
and is as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment as any one
under it” (1996 [1689], Book II, Chapter VIII, §119).
4 “For by a right nothing can abrogate, when each man attains his majority and becomes his own master,
he also becomes master of renouncing the contract that connects him with the community by leaving the
country in which that community is established. It is only by staying there after attaining the age of reason that
he is considered to have tacitly confirmed the commitment his ancestors made” (E V, p. 455). Strictly speaking,
then, there must be a plurality of legitimate political communities in the world with relatively unrestricted
rights of exit and entry in order for residence to constitute a sound basis for the attribution of tacit consent.
Of all the social contract theorists, none had as keen a sense of the importance of this background
condition for the validity of tacit consent as Fichte, who defended a universal right to emigrate and a correlative
duty of all states to welcome immigrants. For Fichte, there is an “original human right which precedes all
rightful contracts and which alone makes them possible: the right to every other human being’s expectation to
be able to enter into a rightful relation with him through contracts”—a right that “entails his right to enter into
the territory of the foreign state; for if one has a right to the end he seeks to attain, then also has a right to the
means” (2000 [1797], Second Appendix §22).

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opportunity to at least contribute to shaping the terms of political association qua members

of the sovereign people empowered to collectively ratify the government’s authority.

There is a second, more serious challenge for Rousseau’s project as I have framed it.

The problem, in short, is that Rousseau’s commitment to the voluntarist and non-domination

constraints (section 4.4) might seem inconsistent with his allegiance to the Bodinian

doctrine of absolute sovereignty. If political association must always involve consenting to

being coerced by an absolute sovereign, how is that not the very kind of submission to an

alien will that Rousseau claims can never be validated by consent? In short, Rousseau’s

answer is that this objection only defeats some forms of absolute sovereignty, and that the

Republic of the General Will is one with a democratic sovereign precisely because this is the

only constitutional arrangement that is immune to this objection. We can consent to the

absolute authority of the people as a whole because its sovereign will, properly understood,

is not an alien, dominating one. The Republic of the General Will is an object of valid

normative consent.

Rousseau endorses the absolutism thesis because he adopts some of the central

tenets of the Hobbesian account of incorporation and its corresponding political ontology.5

Rousseau agrees with Hobbes that a political society is a corporate person or, to use

Rousseau’s own phrase, a “personne morale.” Aside from the standard analogy of the “body

politic” (“The body politic, taken by itself, can be looked upon as an organized body, alive,

and similar to a man’s,” PE 10), Rousseau insists that a political association “is also a moral

being that has a will” (PE 12): “this act of association produces—in place of the particular

5 On the continuities between Hobbes’s and Rousseau’ ideas about incorporation, see Pettit 2013, pp.
179-187, and Douglass 2015, pp. 115-127.

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person of each contracting party—a moral and collective body [corps moral et collectif]

composed of as many members as the assembly has voices. This public person, understood

generally, takes the name body politic… Speaking of the members collectively they take the

name people” (E V, p. 460). Rousseau follows Hobbes’s functional conception of persons as

entities capable of acting, of having a will. Though he most likely did not read Leviathan,6

where Hobbes’s theory of personation is fully articulated, Rousseau did read Sorbière’s 1649

French translation of De Cive as well as Barbeyrac’s 1712 annotated translation of

Pufendorf’s De iure naturae et gentium, where Pufendorf adopts the Hobbesian conception

of persons in speaking of collective agents—a class of persons by fiction in Hobbes—as

personae morales (Lib. I, Cap. I §12).7 There, Pufendorf expressly mentions the state as falling

under the heading of “compound” moral persons (ibid.).8 Rousseau’s use of the term “moral

person,” then, can be understood as an endorsement of the important ontological thesis first

advanced by Hobbes and then rehearsed by Pufendorf—that the state or the people is a

corporate person constituted by the act of political association and the institution of a

sovereign. “The State or the City is only a moral person whose life consists in the union of its

members” (SC II.4.1).9

6 There was to be no full French translation of Leviathan until the 20th century (Newey 2008, p. 319),
though the 1668 Latin edition was presumably available in Rousseau’s day.
7 Rousseau owned both Sorbière’s translation of De Cive and Barbeyrac’s translation of Pufendorf,
(Richebourg, 1932); in fact, Rousseau “is quite likely to have recommended Pufendorf’s Law of Nature and of
Nations to Diderot” (Schwartzberg 2008, p. 409). On the importance of Barbeyrac and Pufendorf in the
transmission of Hobbesian ideas in 17th-century Europe, see Tuck 2015, pp. 108-109, 121-123.
8 Although Pufendorf retains the term “substance,” he seems to be working with a functional rather than
metaphysical conceptions of persons, like Hobbes did before him: “Entia moralia, quae ad analogiam
substantiarum concipiuntur, dicuntur personae morales, quae sunt homines singuli, aut per vinculum morale in
unum systema connexi, considerati cum statu suo aut munere, in quo in vita communi versantur. Sunt autem
personae morales vel simplices vel compositae… Inter illas [i.e. personae morales compositae et politicas]
quaedam cum summon imperio rempublicam regunt” (Lib. I, Cap. I, §12).
9 Rousseau’s use of the term personne morale confirms that by “moral” he means an artifice or creation
of human reason. As Neuhouser argues, the term “moral” in Rousseau generally denotes “intellectual, mental
or spiritual aspects of human reality, in contrast to the material and physical” (1993, p. 366n4). In this context,

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Like Hobbes, Rousseau believes that the “moral person” of the state or the people

cannot come into existence without instituting some agency that can act in its name. Only

this agency can endow the contractors with a collective will, making them into a single

“moral person”; this marks the ontological leap from multitude to political society proper. In

Rousseau’s theory, the agency in question is the people itself defining its corporate will

through a majoritarian decision rule. The unanimous agreement to incorporate involves

treating the vote of the majority as the will of the people qua “moral person”: “Except for this

primitive contract [of incorporation], the vote of the majority always obligates all the rest;

this is a consequence of the contract itself” (SC IV.2.7).10 Also in agreement with Hobbes,

it has nothing to do with moral values such as “solidarity,” as suggested by Wolin (2004, p. 334). To say of a
human group that it is a moral person is just to say that it displays agential unity, i.e. that it has a (collective)
will. This applies to the state as much as to Rousseau’s other explicit example of a personne morale, the married
couple: “The social relationship of the sexes is an admirable thing. This partnership produces a moral person
of which the woman is the eye and the man is the arm, but they have such a dependence on one another that
the woman learns from the man what must be seen and the man learns from the woman what must be done”
(E V, p. 377). The similarity between the ideal Rousseauian marriage and the Republic of the General Will is
unmistakable: “Each follows the prompting of the other; each obeys, and both are masters” (ibid.).
It is also easy to mistake Rousseau’s ontology of the people (and indeed of any collective agent) for a
kind of organicist claim about finding oneself in the “whole.” This is the view Berlin (mis)attributes to
Rousseau: “Rousseau gradually moves toward the notion of the general will as almost the personified willing
of a larger supra-personal entity, of something called ‘the State’… something like a Church, a unity in diversity,
a greater-than-I, something in which I sink my personality only in order to find it again” (2002 [1952], p. 45).
The same mistake is made by Yonah’s avowedly communitarian reading of Rousseau: “He [the citizen] should
view himself as an indivisible part of that community… The general will is a reflection of the embeddedness of
the agent in a community of which he is an integral part…. [I]t is a manner of self-perception whereby private
and collective interests are thoroughly fused” (301-302; cf. p. 304 for his endorsement of Berlin’s reading of
Rousseau as a theorist of “positive freedom”). Yonah consistently minimizes Rousseau’s respect for the
individuality of persons and their particular projects and pursuits, even though Rousseau’s contractualist mode
of justification signals it vert clearly. The legitimate state must prove to be an “advantageous exchange” from
each contractor’s individual point of view (SC II.4.10).
10 In Chapter 3.3 I argued that the mathematical construct of the majority fails to ensure collectively
rational decisions for a group, and that consequently the Hobbesian demos fails to satisfy Hobbes’s own
univocality condition. To the extent that the Rousseauian people also adopts majority rule as its collective
decision-making rule, the objection Hobbes faces applies to Rousseau as well.
There is, however, one important difference between Rousseau and Hobbes on the issue of collective
decision rules. When a Hobbesian multitude decides to incorporate into a democracy, all that is required is the
unanimous agreement that the people shall be sovereign. Hobbes seems to think that majority rule is the
natural and only plausible way to settle what the will of the people shall be (which is why he makes no effort
to justify majority rule or defend it vis-à-vis alternative decision procedures). By contrast, Rousseau realizes
that the multitude needs to make two separate decisions, both of which require unanimous agreement: the
multitude must agree to make the people sovereign and, separately, it must agree on a collective decision

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Rousseau identifies this unifying agency with the sovereign. Rousseau’s critical departure

from Hobbes on this point lies in the claim that a would-be sovereign whose will is arbitrary

and hence dominating with respect to its subjects cannot possibly incorporate the people as

a group agent. “There will always be a great difference between subjugating a multitude and

ruling a society. When scattered men, regardless of their number, are successively enslaved

to a single man, I see in this nothing but a master and slaves, I do not see in it a people and

its chief; it is, if you will, an aggregation, but not an association; there is here neither public

good, nor body politic” (SC I.5.1, emphases added). Rousseau’s invocation of the central

distinctions in the political ontology of Hobbes—multitude vs. people, aggregation vs.

association—signals his intention to subvert the Hobbesian theory of the absolute state from

within, as it were. Rousseau rejects the Hobbesian view that any personator will do for the

purposes of political incorporation, while he is steadfast in his commitment that “the

foundation of society” involves instituting a sovereign, and that this is “the act by which a

people is a people” (SC I.5.2).

How, then, does a people (or multitude, omnes singuli) become a people (or moral

person, omnes universi)? First of all, Rousseau rehearses the familiar contractualist

argument from mutual advantage to explain why individuals would want to found a political

society in the first place: “Now, since men cannot engender new force, but only unite and

direct those that exist, they are left with no other means for self-preservation than to form,

procedure make up its mind as a people: “The law of majority rule is itself established by convention, and
presupposes unanimity at least once” (SC I.6.3). In this way, Rousseau leaves open the possibility that the
contractors might adopt some decision rule other than majority rule, provided they unanimously agree on what
that rule shall be. Rousseau realizes that majoritarianism is yet another convention, not a “natural” or uniquely
attractive collective decision rule. Perhaps Rousseau would have considered alternatives to majority rule had
he been aware of the difficulties I brought up in Chapter 3.3. I am indebted to Schwartzberg 2008 for pressing
the point that Rousseau needs, and must be presumed to have, some justification for the move from unanimity
to majority rule as the appropriate collective decision procedure among newly incorporated contractors.

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by aggregation, a sum of forces that might prevail over those obstacles’ resistance [i.e.

obstacles that interfere with their preservation], to set them in motion by a single impetus,

and make them act in concert” (SC I.6.2, emphasis added). Each contractor knows that

everyone would benefit from cooperation, but sustainable cooperation requires uniting their

forces into a “single” will. As in Hobbes’s theory, the main difficulty is that each contractor

has sufficient reason to enter the cooperative scheme only if given assurance that others will

honor the terms of cooperation as well: “how can he commit them [his force and freedom]

without harming himself, and without neglecting the cares he owes himself?” (SC I.6.3).11

Rousseau is in agreement with Hobbes on two scores. First, that there is only one

kind of agreement that can solve the problem of assurance and meet the needs of the

contracting parties, i.e., uniting them into a single “moral person” with force enough to

protect their persons and goods consistently with their fundamental interest in remaining

free (SC I.6.4). This requirement is so specific that “The clauses of this contract are so

completely determined by the nature of the act that the slightest modification would render

them null and void” (SC I.6.5). Second, Rousseau concurs with the Hobbesian idea that

assurance can only be obtained by a simultaneous and universal transfer of the “unlimited

right” associated with each contractor’s natural freedom to one and the same sovereign:

“These clauses, rightly understood, all come down to just one, namely the total alienation of

11 In the Geneva Manuscript, Rousseau makes the problem of assurance even more salient: “if while I
scrupulously observed [the social law] toward the rest, I were sure that they would all observe it toward me…”
(GM I.2.10).
Rousseau’s very explicit appeal to the contractor’s standpoint as a standard for the justification of
institutions militates against the view that “For Rousseau, the initial ends of the contractors are besides the
point… The general will leaves room for private wills, but determines their legitimate scope, rather than
answering to them” (Ripstein 1994, pp. 450-451). Ripstein confuses the standpoints of the contractor with that
of the citizen—an important distinction to which I return after examining what exactly Rousseau means by the
“general will.”

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each associate with all of his rights to the whole community” (SC I.6.6, emphasis added). The

moment this transfer is carried out by all contracting parties, “the whole community”

becomes the sovereign, and the multitude acquires the unified will that makes it into the

moral person of the people. Rousseau’s condensed account of the effects of this act of

association is worth quoting at length:

At once, in place of the private persons of each contracting party, this act of
association produces a moral and collective body made up of as many members as
the assembly has voices, and which receives by this same act its unity, its common
self, its life and its will. The public person thus formed by the union of all the other
formerly assumed the name City and now assumes that of Republic or body politic,
which its members call State when it is passive, Sovereign when active, Power when
comparing it to similar bodies. As for the associates, they collectively assume the
name people and individually call themselves Citizens as participants in the sovereign
authority, and Subjects as subjected to the laws of the State. (SC I.6.10)

We can untangle the effects of political incorporation by focusing on two

simultaneous transformations it brings about. On the one hand, the individual contractor

becomes an associate: qua participant in the sovereign assembly of the whole community,

he is a citizen; qua person bound by the laws passed by the sovereign assembly of which he

is a member, he is (also) a subject. On the other hand, the “moral and collective person” of

the people comes into being. In its capacity as personator for itself (to borrow Hobbes’s

terminology), the people is an active sovereign; regarded as the person personated, it is a

state or republic.12

This entire process begins with the “total alienation” of the contractor’s “unlimited

rights” associated with natural freedom. This “total alienation” is the mark of Rousseau’s

commitment to the Bodinan thesis that sovereignty cannot but be absolute. As a result of

the social contract, “Just as nature gives each man absolute power over his members, the

12 See Chapter 3.2 on the active/passive people distinction.

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social pact gives the body politic absolute power over all its members, and it is this same

power which, directed by the general will, bears, as I have said, the name of sovereignty” (SC

II.4.1, emphasis added). The absolute character of the Rousseauian sovereign is confirmed

by the fact that it is incontestable, subject to no justiciable limitations in the exercise of its

authority. Because “this alienation is made without reservation,” “no associate has anything

further to claim” against the sovereign after the act of incorporation (SC I.6.7). No individual

contractor can retain justiciable rights against the sovereign community. Rousseau’s

argument virtually mirrors Hobbes’s invocation of the principle nemo iudex in sua causa: “For

if individuals were left some rights, then, since there would be no common superior who

might adjudicate between them and the public, each, being judge in his own case on some

issue, would soon claim to be so on all” (ibid; cf. also SC II.4.6).13 Rousseau makes his

rejection of justiciable rights against the sovereign clearest when he discusses the right of

private property: “the right every individual has over his own land is always subordinate to

the right the community has over everyone” (SC I.9.7). 14 The idea is not that political

incorporation abrogates pre-political property rights. Rather, the claim is that the political

state “secures to [individuals] their legitimate possessions, changes usurpation into a

genuine right, and use into property” (SC I.9.6). There can only be property rights properly

so-called within a political association instituted by the social contract and ruled by an

13 For Hobbes’s version of this same argument, see Chapter 3.5.

14 It is telling that Rousseau chooses private property as the main example to argue against the
justiciability of individuals rights against the sovereign. It is as if he wanted to validate his absolutist credentials
by going beyond Bodin himself, who conceded that ownership was valid prior to, and independently of, the
absolute sovereign, who had no jurisdiction to dispose of the subject’s belongings at will (1992 [1576], p. 21;
see p. 132n56). More importantly for Rousseau, this view was central to Locke’s doctrine of the pre-political
constraints on the authority of government: “Civil Society; the chief end whereof is the preservation of
property” (1996 [1689], Book II, Chapter VII, §85) cannot infringe upon property rights. “The Supream Power
cannot take from any Man any part of his Property without his own consent” (op. cit., §138).

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absolute sovereign. And like any right acquired within the Republic of the General Will,

property rights cannot be invoked as justiciable constraints on the authority of the very

sovereign that grants them.

Also in agreement with Hobbes’s defense of absolutism, Rousseau explains that the

sovereign cannot limit its own power through the laws that express its will: “the public

deliberation which can obligate all subjects toward the Sovereign… cannot… obligate the

Sovereign toward itself, and that it is therefore contrary to the nature of the body politic for

the Sovereign to impose on itself a law which it cannot break” (SC I.7.2).15 Either sovereign

power is unlimited, or it is no such power at all: “the supreme can no more be modified than

it can be alienated, to limit it is to destroy it” (SC III.17.4).

Rousseau’s absolutism goes hand in hand with the Bodinian doctrine of indivisibility

and, consequently, like Hobbes, he rejects the republican idea of the mixed constitution. The

mixed constitution turns “the Sovereign into a being that is fantastical and formed of

disparate pieces” (SC II.2.2), and makes the error of taking “what were mere emanations

from this [indivisible] authority for parts of this authority itself” (SC II.2.3). Consequently,

“whenever one believes one sees sovereignty divided, one is mistaken” (SC II.3.4). It is either

not divided at all, or no sovereignty to begin with, for “the Sovereign authority is simple and

single, and it cannot be divided without being destroyed” (SC III.13.5).16

15 Rousseau does not need a further argument to show that the people cannot as a corporate body limit
the authority of the sovereign because the people itself is the sovereign. However, he deploys this idea (that
the moral person of the people cannot act independently of, and therefore limit, the sovereign) in an argument
against Grotius, who mistakenly assumed that “a people is a people before giving itself to a king” (SC I.5.2).
Pufendorf held a similar view: he believed that incorporation involved two distinct pacts, one forming the
people and another instituting a sovereign, making it possible for him “to talk of the people and the sovereign
having rights and duties” with respect to one another (Douglass 2013, p. 738, and Tuck 2015, 105-116).
16 While Rousseau defends the republican idea of freedom as non-domination, his absolutism leads him
to reject the two central institutional ideals of classical republicanism: justiciable individual rights against the

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With the full force of Rousseau’s absolutism in view, let me restate the challenge I

posed at the beginning of this section. Rousseau needs to show that the will of the sovereign

people, though absolute, is not itself a form of domination of the kind that can never be

legitimized by voluntary consent. I have claimed (though not yet spelled out the argument)

that for Rousseau, it is a unique feature of popular sovereignty that it is not dominating in

that way. Whether his account of why that is works or not, he certainly needs to part

company with Hobbes and Bodin on one crucial point. If the people as a collective agent

could transfer sovereign authority to some person or council, then it would not matter if the

Republic of the General Will was in fact non-dominating. If the sovereign people could at any

point decide to alienate its authority, the contractors could never rest assured that they

would not come to be dominated by a non-popular, absolute sovereign sometime in the

future.

Recall that the early Hobbes (in De Cive and Elements of Law) would have completely

agreed with Rousseau that the “total alienation” of the contractor’s rights first involves a

transfer to the whole community. In Hobbes’s two-stage account of incorporation (the one

Rousseau was most likely to have been familiar with), there is always a pro tempore

democratic sovereign that must confirm, by majority rule, whether it is to retain sovereign

authority in perpetuity, or whether it wishes to hand it over to another agency or person.17

sovereign and the mixed constitution. This is why Pettit associates Rousseau with a “broadly communitarian,”
Franco-German republican tradition, as opposed to the classical, Italian-Atlantic one (Pettit 2013).
Though he does not marshal as many explicit arguments against the mixed constitutions as Bodin and
Hobbes, Rousseau clearly agrees with the idea that “such government is not government, but division of the
commonwealth” into “factions” (L XXIX.16). In speaking of Rome “when two or more orders make up its
constitution,” namely, patricians and plebeians, Rousseau remarks that it was in fact “two States in one; [and]
what is not true of the two together is true of each separately,” i.e. that they were each sovereign (SC IV.2.2).
Bodin said much the same thing about Rome as well (see p. 127n50).
17 See Chapter 3.4, for a discussion of Hobbes’s two-stage account of incorporation and the changes he
later introduced in Leviathan. In the latter text, Hobbes does not require that the “total alienation” of which

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Precisely to block this possibility of a democratic sovereign divesting itself of its authority,

Rousseau amended the Bodinian doctrine of absolute, indivisible sovereignty adding a

further condition: sovereignty is also always inalienable. “I say, then, that sovereignty… can

never be alienated, and that the sovereignty, which is nothing but a collective being, can only

be represented by itself” (SC II.1.2).18 Nobody can legislate in the sovereign’s stead, nor can

a sovereign people divest itself of its absolute authority. Nobody other than the people itself

can ever have the right to perform as a state.19

I have already hinted at the first argument against the possibility of alienating

sovereignty, an argument by analogy with Rousseau’s critique of voluntary servitude. As I

explained in section 4.4, Rousseau has three arguments against the normative validity of self-

enslavement: (i) that freedom is improperly modelled on ownership, and so it is not the kind

of thing that can be alienated; (ii) that there is a contradiction in exercising the power of free

choice to divest oneself of it, given that it is that very capacity that makes one a person; and

(iii) that slavery typically results from madness or from circumstances of necessity in which

the enslaved person lacked reasonable alternatives to choose from, making the decision non-

Rousseau speaks always be in favor of the whole community. The only Hobbesian condition on the validity of
transfers of sovereign is that they be done in toto, consistently with the Bodinian doctrine of indivisibility (see
p. 130n55).
18 Though I illustrate it by reference to Hobbes, Rousseau’s argument against the alienability of
sovereignty was actually aimed against the Genevan patriciate’s contention that the original sovereignty of the
Gevean people had been transferred to them. This claim was based on Pufendorf’s theory of incorporation as
developed by his Genevan disciple, Jean-Jacques Burlamanqui (Douglass 2013, pp. 738-739 and 2015, pp. 121-
123). Rousseau is most clearly arguing against Pufendorf’s two-pacts version of political incorporation in SC
III.16.3-7 (see p. 235n15).
19 As I understand it, Rousseau’s political ontology and consequently his defense of popular sovereignty
are not metaphorical at all, contrary to what has been argued by Douglass (2015, p.124) and, most explicitly,
by Shklar (1969). Shaklar believes that “The ‘sovereignty of the people’ is also a metaphor containing negation.
The word sovereignty has scarcely any meaning at all apart from absolute monarchy… The sovereign people
implies the destruction of sovereignty as a relation between rulers and ruled. It is the anti-monarchy, and not
a new sovereignty in any intelligible sense” (p. 168). Nothing could be farther from the truth—and not just in
Rousseau’s case, but also in the writings of Bodin and Hobbes. They all agreed that sovereignty had to be
absolute, but conceded that monarchy was only one of several, equally valid forms it can take.

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voluntary. Let us assume that the last point does not apply to a sovereign people considering

whether or not to alienate its authority, though Rousseau does suggest that only “necessity”

could lead a people to submit to the (arbitrary) will of a non-democratic sovereign (SD II.37,

SC I.4.4). Still, the other two issues easily apply to the case of a popular sovereign bent on

transferring its authority to another agent. It is as true of a “moral person” as it is of an

individual human being that it would cease to be what it is upon alienating its power of

volition—in fact, it is more literally true in the former case, given Rousseau’s view that

submission to an arbitrary will does not constitute a valid form of incorporation. For a

sovereign people to give away its authority is to commit political suicide, literally: “If, then,

the people promises simply to obey, it dissolves itself by this very act, it loses its quality of

being a people; as soon as there is a master, there is no more sovereign, and the body politic

is destroyed forthwith” (SC II.1.3). This is a straight-forward implication of Rousseau’s

distinction between “subjugating a multitude and ruling a society” (SC I.6.1).20

As for the idea that freedom is unlike something that the people owns and so can

transfer, Rousseau explains that this follows from the general principle that “power can well

be transferred, but not will” (SC II.1.2). Just as an individual’s capacity to choose is not his

20 Richard Tuck believes that in defending popular sovereignty, “Rousseau’s theory is Hobbes’s with an
inconsistency removed, rather than a theory that is in fundamental opposition to Hobbes” (2015, p. 141). As I
pointed out in p. 116n32, Tuck’s reading of Hobbes privileges the two-stage account of incorporation in which
the multitude first becomes a pro tempore democratic sovereign before appointing the sovereign proper in
perpetuity. The “inconsistency” Tuck misattributes to Hobbes is that of allowing a pro tempore sovereign demos
to appoint someone other than itself as sovereign in perpetuity. But there is nothing inconsistent in Hobbes’s
claim that sovereignty is alienable, provided it is transferred in toto (see p. 236n17). Hobbes is internally quite
consistent in allowing for complete transfers of sovereignty. The appearance of inconsistency arises only out
of Tuck’s interest in linking Hobbes “to the cause of radical democracy” (op. cit., 141).
Rousseau’s conception of sovereignty was thoroughly Hobbesian, but not his theory of valid consent.
The impossibility of a non-democratic sovereign for Rousseau is a function of his more demanding theory of
consent, not the working out of the implications of Hobbes’s model of incorporation or his idea of sovereignty.
This is patently clear when Rousseau indicates that the argument against the alienation of sovereignty is
entailed by his rejection of voluntary servitude: “If a slave, than, cannot alienate himself without reserve to his
master, how can a people alienate itself without reserve to its chief?” (E V, p. 460).

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property—not something that can be given to another—, so a people’s corporate will is not

“owned” by the people; therefore, it cannot be surrendered while continuing to exist as a

people. If Rousseau’s political ontology is correct (i.e., if an arbitrary will cannot be the

personator of a group agent), then it follows that the existence of the people as a moral

person depends on its continued ability to exercise its own corporate will. The alienation of

sovereignty would not merely change the personator that speaks on behalf of one and the

same people, as Hobbes would have it. No: it completely undoes the act of incorporation and

reduces the people to a multitude or plurality of servants who just happen to obey the same

master. “But the body politic or Sovereign, since it owes its being solely to the sanctity of the

contract, can never obligate itself, even toward another, to anything that detracts from the

original act, such as to alienate any part of itself or to subject itself to another Sovereign” (SC

I.7.3; emphasis added).21

This last point is closely connected to Rousseau’s claim that “Sovereignty cannot be

represented for the same reason that it cannot be alienated” (SC III.15.5). To clarify, it is not

his view that the sovereign people must directly discharge the business of governing. On the

contrary, Rousseau was very clear that the sovereign people can (and in fact should) delegate

the exercise of some of its sovereign prerogatives to an independent government and its

magistrates (SC III.1.17-19). Rousseau’s ban on representing the sovereign is more specific

than his wording may at times suggests: it is explicitly a ban on representing the sovereign’s

“will,” not its “force.” “[T]he People cannot be represented in its Legislative power; but it can

21 As this analysis indicates, Rousseau’s case for popular sovereignty is far more sophisticated than the
simple claim that “Since there must be sovereign, but sovereignty cannot belong to anyone in particular, he
thinks it can only belong to everyone” (Simpson 2006, p. 47). The reason why sovereignty can only belong to
everyone is that that no other constitutional arrangement is a valid object of consent.

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and must be represented in its executive power, which is nothing but force applied to Law”

(SC III.15.8).

The distinction between will and force is crucial, as it explains how inalienable, non-

representable sovereignty is consistent with partial delegation of authority to the

independent agency of the government. This distinction had an important history before

Rousseau, beginning with Bodin’s claim that the defining attribute of sovereignty is the

power to legislate. Like Bodin and Hobbes, Rousseau insists that sovereignty is not “a being

that is fantastical and formed of disparate pieces” (SC II.2.2) because all the powers

comprehended in it can be derived from the essential prerogative of exclusive law-making.

But in addition to this, Rousseau held that there is a conceptual, functional distinction

between the legislative and executive powers of the sovereign. This idea had been

previously developed by Locke, for whom the “original of the Legislative and Executive Power

of Civil Society” is grounded in the distinct powers of individuals in the state of nature.22

Because there is no common enforcer in the Lockean state of nature, and yet natural law is

valid therein, “every Man hath a Right to punish the Offender, and be Executioner of the Law of

Nature.”23 This natural authority to “execute” the law of nature is the source of the

government’s authority to execute (i.e., enforce) the laws, “And thus the Legislative and

Executive Power come often to be separated.”24 This Lockean idea was adopted and

developed by Montesquieu, who made the actual de-centralization of these conceptually

distinct functions a constitutive feature of political liberty: “In each state there are three sorts

of powers: legislative power, executive power over the things depending on the right of

22 Locke 1996 [1689]), Book II, Chapter VII, §88.

23 Op. cit., Book II, Chapter II, §8.
24 Op. cit., Book II, Chapter XII, §144.

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nations, and executive power over the things depending on civil right… When legislative

power is united with executive power in a single person or in a single body of the magistracy,

there is no liberty.”25 Drawing on both Locke and Montesquieu, Rousseau insists that there

is an analytic distinction between executive and legislative acts of sovereignty. Though

legislation as well as execution are sovereign prerogatives, they differ both in nature and

priority.26 Legislation is normatively prior to execution, which is why executive power is not

a “part” of, but rather “emanates” from, legislative power (SC II.2.3). As he puts it elsewhere,

executive power “is not the essence” of sovereignty, which instead lies with legislative

authority (SC III.16.1). And in terms of their nature, law is distinct because it is in every case

general in scope: law is general in that it applies to every citizen-subject equally.27 By

contrast, an executive act (of adjudication or enforcement) applies general laws to individual

25 Montesquieu 1989 [1748], Part II, Book 11, Chapter 6 (pp. 156-157). Montesquieu makes an important
addition to Locke’s argument by identifying a third, functionally distinct power of adjudication, which Locke
seems to have assumed was just part of the executive power. “Nor is there liberty if the power of judging is not
separate from legislative power and from executive power… If it were joined with executive power, the judge
could have the force of an oppressor” (ibid.); “the masterwork of legislation is to know where properly to place
the power of judging. But it could not be placed worse than in the hands of the one who already had executive
power” (Op Cit., Part II, Book 11, Chapter 11, p. 169). On Montesquieu’s influence on Rousseau, see Wokler
1995, pp. 71-72, and Shklar 1969, p. 171n6.
26 It is crucial to notice that all executive authority is originally and inalienably the people’s; it is just that
it can be deployed or exercise by delegates appointed to that end. The “paradox of sovereignty” Simpson
imputes to Rousseau does not exist. His argument is that “the Sovereign’s duty is to replace the Prince when it
abuses its power,” bus since the Sovereign “cannot judge particulars” because it is not the executive authority,
“it cannot possibly know” whether “the Prince has correctly applied the law to particulars” (2006, p. 51). It is
not true that the Sovereign “cannot judge particulars”; as we shall see in connection with the forms of
government, it most certainly can (though Rousseau prefers a constitutional arrangement in which it does not).
It can even issue pardons in particular cases (see p. 284n96). Nor is it true that the Sovereign’s primary role is
to control the Prince, since the Prince’s existence and authority is entirely derivative. The Sovereign is not a
“check” on the Prince; instead, it is the fons et origo of its authority. Simpson is right to conclude that Rousseau’s
“system of checks and balances” is “futile” (ibid.)—because he never intended there to be one! Rousseau
learned much from Locke and Montesquieu, but he remained faithful to Bodin and Hobbes on the absolute and
indivisible character of sovereignty.
27 The generality of law involves the equality of every citizen-subject before the law, but not necessarily
equality of effects (Sreenivasan 2000, p. 567). The important point is that laws cannot be tailored to specific,
individual cases, only to general classes of citizens such that anyone could in principle fall under them. The laws
cannot include definite descriptions or rigid designators. Rousseau offers a neat example of the generality he
has in mind: “The sovereign has no right to touch the possessions of one or more individuals. But it can
legitimately seize the possessions of all” (E V, pp. 461-462).

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persons in concrete circumstances; it is “only an application of the law, a particular act which

decides a case” (SC II.2.3). In matters of legislation, “the declaration of this [general] will is

an act of sovereignty and constitutes law; in the second case, it is merely a particular will, or

an act of magistracy; at most a decree” (SC II.2.1; cf. E V, p. 462).28

Rousseau’s distinction between legislation and execution (or will and power, or “force

and will,” SC III.1.2) reflects the priority of the legislative rights of the sovereign, since

execution is but the application of general laws. This functional division of what the

sovereign will can do plays no role in Hobbes’s theory. For Hobbes, the defining attribute of

law is simply being the command of an authorized sovereign (DCv XIV.1, L XXVI.2-3), but

commands need not be general at all. While Hobbes distinguishes imperatives, covenants,

counsels, and commands (EL XXIX.1), the distinction depends on the standing of the issuer

with respect to the addressee, not on the scope (general vs. particular) of the injunction:

“whatsoever is a law to a man, respecteth the will of another and the declaration thereof. But

a covenant is the declaration of a man’s own will. And therefore a law and a covenant differ”

(EL XXIX.2); “For the difference between a law and a counsel being no more but this, that in

counsel the expression is, Do, because it is best, in a law, Do, because I have right to compel

you” (EL XXIX.4). Technically speaking, a Hobbesian law could contain definite descriptions

as well as rigid designators. Hobbes has no principled way of distinguishing law from acts

of execution or adjudication. By contrast, since Rousseau adopts the (principled) distinction

28 In this passage, the magistrate’s will is “particular” in terms of scope, not in the sense that the
magistrate is acting on her particular will, i.e. her contingent desires, preferences, and beliefs. Rousseau makes
this clear when he states that the particularity of scope of executive action does not amount to saying that “the
commands of the chiefs may not be taken for general wills as long as the sovereign is free to oppose them and
does not do so. In such a case the people’s consent has to be presumed from universal silence” (SC II.1.4). I
discuss the problems raised by the particular will(s) of the magistrates in Chapter 6.1.

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between execution and legislation proposed by Locke and Montesquieu, he can consistently

allow for the delegation of executive authority while insisting on the impossibility of

representing sovereign law-making.29

When Rousseau’s sovereign/government distinction is understood in this way,

namely, as institutionalizing a more fundamental distinction between laws and decrees, it

becomes clear that Rousseau was not in this particular respect building on, much less

“reviving,” the distinction between summum imperium and administratio found in both Bodin

and Hobbes.30 As far as Bodin and Hobbes were concerned, a sovereign could delegate even

its legislative authority to a particular magistrate (provided the sovereign remain in virtual

control of the magistrate’s decisions). What a sovereign can never do is alienate part of its

authority. The Bodin-Hobbes view is that sovereignty must be absolute and indivisible, and

Rousseau followed them to that extent. His additional claim that legislative authority in

particularly cannot be represented or delegated (whereas executive authority could) is a

29 The delegation of the sovereign’s exercise of executive authority (an authority it always retains) is, for
Rousseau, consistent with the Bodinian doctrine of indivisibility. The key condition is that one cannot take
“mere emanations from this [legislative] authority for parts of this authority itself” (SD II.2.3). Bodin and
Hobbes would agree, as they both granted that magistrates can give effect to the sovereign’s power through
delegation. In the case of Rousseau, the fact that the government can represent the sovereign’s executive
authority does not mean that executive power inheres in the government as such; actually, the government
serves at the sovereign’s pleasure and can be recalled at any time, for the executive power is always originally
in the hands of the sovereign people (SC III.14.1).
It is a mistake, therefore, to attribute to Rousseau the view that “Sovereign power refers to the
legislative power, as distinguished from the executive power, which Rousseau calls the government” (Kaufman
1997, p. 47n54), let alone the claim that the government “enjoys—via delegation—the entity’s [i.e. the
sovereign’s] absolute authority over all individual citizens” (Steinberger 2008, p. 608). Nor can one say that
“the Sovereign is the legislative branch of government and the Prince is the executive branch,” as if Rousseau
endorsed the mixed constitution (Simpson 2006, p. 45). The Rousseauian government is a delegate, not a
trustee; an agent, not a principal; it does not inherit sovereign authority from the legislative assembly of the
whole. Steinberger is wrong to equate the fact that government is “fully authorized” with the idea that it acts
“with absolute authority” (p. 608). Technically, the government acts with a pro tanto authority that must
always be confirmed by the sovereign people either expressly or tacitly, i.e., by not rescinding such acts or
recalling the government. Bodin said as much nearly two centuries before Rousseau: magistrates retain their
delegate authority by sovereign “sufferance” alone.
30 This is the central contention of Richard Tuck’s Sleeping Sovereign (2015, esp. pp. 11-12, 124, 257).

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genuine innovation of Rousseau’s within the absolutist tradition, one which I suggest was

inspired by the work of Locke and Montesquieu.31

So why is it that for Rousseau only the sovereign assembly can represent itself in its

legislative capacity? If the sovereign people were to allow someone else to legislate in its

stead, then the people would cease to exercise its defining capacity as a corporate agent—

the capacity to will and lay down norms to regulate and enable social cooperation. Just as

importantly for Rousseau, representation of sovereign law-making would endanger the very

purpose of political incorporation, viz. to “defend and protect the person and goods of each

associate with the full common force” (SC I.6.4). If the people were not directly in charge of

legislation, there would be no guarantee that the laws will serve their protective role with

respect to every associate. Only with legislation in the hands of a popular sovereign will the

interests of the legislator reliably track the common interests of citizens: “Now the

Sovereign… has no need of a guarantor toward the subjects, because it is impossible for the

body to want to harm all of its members, and we shall see later that it cannot harm any one

of them in particular. The Sovereign, by the mere fact that it is, is always everything that it

ought to be” (SC I.7.5). In the end, to delegate its legislative role would resemble an

alienation of sovereignty in that the contractors’ consent to give themselves over to “the

whole community” would come to nothing in practice.32 The effects of representing the

31 For a similar line of criticism of Tuck’s argument, see Douglass 2016, p. 1112. Douglass finds it
“striking” that Tuck should attribute a “theory of sovereignty [that] is largely Hobbesian in inspiration” to
Rousseau (p. 1112), but I think Tuck is absolutely right on that score.
32 I thus agree with Douglass’ contention that Rousseau’s critique of representative lawmaking is
“principled” rather than “pragmatic.” Douglass’ argument in support of Rousseau’s view is that the moral
equality of citizens requires that they each have “an equal right in making law” (2013, p. 744), but I am inclined
to think that this point is best accounted for in connection with the procedural notion of the general will and
the demands of civil freedom (more on that in Chapter 5.2). On the other hand, Kaufman’s (1997) pragmatic
interpretation of the critique of representation as a response to the alleged “temporal instability of [the

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sovereign’s legislative power are as devastating as the full alienation of sovereign authority:

“the instant a People gives itself Representatives, it ceases to be free; it ceases to be” (SC

III.15.11, emphasis added).

The inalienability and non-representability of the sovereign legislative will are

important for Rousseau because they ensure that the Republic of the General Will will

preserve its constitutional structure in perpetuity, thereby honoring the terms to which the

contractors are asked to consent. But none of this suffices to show what the Republic of the

General Will is a sovereign as opposed to a master, that it can be consented to because it does

not simply substitute political domination for personal servitude, or that it truly delivers on

its promise to guarantee the civil freedom of each citizen-subject. Rousseau’s argument to

that effect depends on his theory of the general will, the purpose of which is to show how in

the Republic of the General Will “each, by giving himself to all, gives himself to no one” (SC

I.6.8).

representative’s] subjective willing” misses the depth of the argument, as if Rousseau’s point was only about
the possibility of “framing coherent long-term policy” (p. 29).
Rousseau’s rejection of representative lawmaking is consistent with the less-than-ideal institution of
legislative “deputies.” He offers this possibility in his proposal for the constitutional reform of Poland: “One of
the greatest inconveniences of large States… is that in them the legislative power cannot show itself as such,
and can act only by delegation. This has both bad and good aspects, but the bad aspects predominate” (GP
7.12). In such cases it is acceptable for citizens to send “deputies” who partake in the law-making process per
their express instructions (it is required that “the representatives adhere exactly to their instructions, and to
render strict account of their conduct… to their constituents,” GP 7.15). Because “deputies” are “merely [the
citizens’] agents” they are, for Rousseau, not representatives of the people properly speaking. The crucial
caveat to the legislation-through-deputies model is that the deputies “cannot conclude anything definitively.
Any law which the People has not ratified in person is null; it is not a law” (SC III.15.5). Anyhow, popular
legislation through closely-monitored deputies is only an exceptional, second-best institutional arrangement
to make the Republic of the General Will viable in large states and to salvage them from the temptation to
alienate sovereign authority. It is an institution of last resort: “As soon as public service ceases to be the
Citizen’s principal business, and they prefer to serve with their purse rather than with their person,” at which
point “the State is already close to ruin” (SC III.15.1). (Incidentally, the legislation-through-deputies proposal
for Poland poses a serious challenge to Tuck’s [2015] attribution to Rousseau of a “plebiscitary” model of
democracy for large modern states.)

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5.2 The General Wills

The edifice of Rousseau’s political vision depends to a great extent on his doctrine of

the general will. We know from his conjectural history of humanity that interdependence

coupled with deep-seated inequality are the gravest threats to freedom because they

systematically lead to enduring social relations of domination. But we also know that

interdependence is ineliminable in the current stage of civilization. Our basic human

needs—economic as well as psychological—cannot be met except through cooperation with

others. Since cooperation is only possible in a political society that lays down and enforces

common rules, Rousseau needs to address two crucial difficulties. First, as I have said, he

needs to explain how his version of the social contract results in a form of political

association that is not itself a case of domination, of submission to an alien will. Second, he

must explain how this form of association can accommodate for the demands of

interdependence while eradicating the background social conditions that typically lead to

relations of interpersonal domination. In other words, Rousseau must show how the

Republic of the General Will overcomes submission to both private and public masters; only

then will citizens be in a position to enjoy the civil freedom they sought to gain in

surrendering their natural freedom through the social contract.

The general will specifies the way in which the people exercises its sovereign

authority. When the contractors agree to the “total alienation” of their natural freedom in

favor of “the whole community” (SC I.6.7), thereby instituting a popular sovereign, they

specifically agree to obeying the people’s general will. The words of the contract make this

very clear: “Each of us puts his person and his full power in common under the supreme

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direction of the general will; and in a body we receive each member as an indivisible part of

the whole” (SC I.6.8, emphasis added). The general will is, for Rousseau, what distinguishes

the popular sovereign from an illegitimate master.

I want to propose an interpretation of Rousseau’s general will that distinguishes three

ideas designated by that phrase. There is, first, a psychological notion of the general will. The

psychological general will is an individual’s (virtuous) disposition to consider matters of

public interest only in light of their general effects—that is, in terms of the common good, as

opposed to how the individual would personally stand to benefit from any specific legislative

proposal. The psychological general will is thus opposed to the “particular” will that is solely

concerned with one’s private well-being. There is also an objective concept of the general

will. The objective general will is a procedure-independent yet indeterminate parameter of

assessment for the quality of policy and legislation. This parameter is defined (though it

cannot be fully specified) in terms of the society’s common good, which is in turn fixed by

the citizens’ common interests. The objective concept of the general will is contrasted with

the content-agnostic “will of all.” Finally, there is a procedural conception of the general will.

In this sense, the general will simply is the will of the “moral person” of the people as it

emerges through the vote of the majority subject to certain constraints.33 The procedural

conception of the general will is what gives specificity and practical effect to the objective

concept of the general will, and it is opposed to the will of a factionalized assembly. 34 It

33 I will continue to speak of the vote of majority only because it is Rousseau’s preferred collective
decision-making procedure. However, my interpretation of the general will and the institutional profile of the
Republic of the General Will is consistent with other decision procedures that a Rousseauian demos might adopt
in lieu of majority rule. See p. 230n10 on this possibility and Schwartzberg 2008 for an interesting defense of
majority rule as a more effective way to foster civic virtue than unanimity.
34 The procedural general will fixes the specific content of the open-ended, objective general will, which
is why I refer to the former as a “conception” and to the latter as a “concept.” The idea is that because “common
good” is an “essentially contested concept” (Gallie 1956), it admits of multiple interpretations—i.e.,

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seems to me that keeping track of this threefold distinction is the best way to make sense of

nearly everything Rousseau says about the general will in The Social Contract, and that a

great deal of interpretive confusion is bound to result from losing sight of it.

Let us first consider what Rousseau himself has to say about the general will. The

following review of his own statements gives a sense of the complexity of this part of his

political theory, and of the key focal points for any acceptable interpretation of its meaning.

Rousseau specifies three major properties of the general will. (i) It is general, in two respects:

“it must issue from all in order to apply to all,” and so “it loses its natural rectitude when it

tends toward some individual and determinate object” (SC II.4.5). (ii) The general will is also

infallible, “always upright and always tends to the public utility” (SC II.3.1). (iii)

Furthermore, the general will is supposed to be “constant, unalterable, and pure”, and in

some sense it inheres in the individual citizen: “Even in selling his vote for money [the

citizen] does not extinguish the general will within himself, he evades it” (SC IV.1.6, emphasis

added).

Rousseau also gives several accounts of what the general will does or achieves. (i)

First and foremost, it directs the Republic of the General Will towards the common good:

“the general will alone can direct the forces of the State according to the end of its

institutions, which is the common good” (SC II.1.1). (ii) It also prevents the people as

absolute sovereign from exercising its unlimited authority to directly target and harm

particular citizens. Because the general will is always general in scope, the sovereign “cannot

harm any one of them [its members] in particular” (SC I.7.5; emphasis added). (iii) Because

conceptions—of what it requires. For a similar use of the concept/conception distinction, see Rawls 1999
[1971], p. 5.

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it comes from all (as citizens) and applies to all (as subjects), the general will “tends, by its

nature… to equality” (SC II.1.2). (iv) The general will also brings about “an admirable

agreement between interest and justice” (SC II.4.7). (v) And since the contractors agreed to

obey the general will, and that will is “a convention of the body with each one of its

members,” “they obey no one, but their own will” in following the dictates of the general will

(II.4.8).

Finally, Rousseau has a series of statements that are meant to indicate how the

general will is expressed. (i) For it to be what it is—namely, a general will—it has to emerge

from public-spirited considerations, that is, from reasons concerned with the common good:

“what generalizes the will is not so much the number of voices, as it is the common interest

which unites them” (SC II.4.7). (ii) It is also essential that every citizen have a say on what

the laws should be for them to embody the general will: “For a will to be general, it is not

always necessary that it be unanimous, but it is necessary that all voted be counted; any

formal exclusion destroys generality” (SC II.2.1n). (iii) However, the plurality of voices

deciding what the law should be does not by itself guarantee that the law will in fact express

the general will, for “One always wants one’s good, but one does not always see it” (SC II.3.1)

even though “the common good is everywhere fully evident and requires only good sense to

be perceived” (SC IV.1.1). Consequently, while “The general will is always upright,… the

judgment that guides it is not always enlightened” (SC II.6.10). (iv) It follows that the will of

all is not always the general will, though it can certainly approximate it if a sufficiently large

number of citizens partake in the law-making process: “There is often a considerable

difference between the will of all and the general will: the latter looks only to the common

interest, the former looks to private interest, and is nothing but a sum of particular wills; but

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if, from these same wills, one takes away the pluses and minuses which cancel each other

out, what is left as the sum of the differences is the general will” (SC II.3.2). (v) For the same

reason that a plurality of inputs contributes to tracking the general will, there is also a

correlation between the level of agreement in the legislative assembly and the odds that the

law does in fact express the general will: “The more concord reigns in assemblies, that is to

say, the closer opinions come to unanimity, the more the general will also predominates” (SC

IV.2.1).35 (vi) Last but not least, the will of all will consistently fail to track the general will if

the legislative assembly is factionalized. “It is important, then, that in order to have the

general will expressed well, there be no partial society in the State, and every Citizen state

only his own opinion” (SC II.3.4). “[T]he clamors of a faction” must never be mistaken for

“the will of an entire people” (III.18.4).

Rousseau’s statements about the general will can seem unsystematic, even

contradictory. For how can the general will be both infallibly right and the will of a non-

factionalized yet fallible legislative assembly? And if not every citizen is an equally

competent judge of the common good (as is only natural to assume), what reason is there to

believe that a large popular assembly is the best way to track the general will, as opposed to,

say, a committee of legislative experts? How is it that the general will supposedly exists

“within” the citizen, but all that is needed for it to emerge is the cancelling out of private

interests in a majoritarian decision-making process?36

35 Provided, of course, that this “concord” is spontaneous, not induced: “At the other end of the cycle,
unanimity returns. That is when citizens, fallen into servitude, no longer have freedom or will” (SC IV.2.3).
Hence the suggestion that “the more important and serious the deliberations are, the more nearly unanimous
should be the opinion that prevails” (ibid.).
36 Sabine’s perplexity is representative of the understandable frustration from trying to making sense of
most (if not all) of Rousseau views on the general will, and worth quoting at length: “The general will, as
Rousseau said over and over again, is always right. This is merely a truism, because the general will stands for
the social good, which is itself the standard of right. What is not right is merely not the general will. But how

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These and similar questions can be answered if we impose some order upon

Rousseau’s less than methodical exposition of the doctrine of the general will. To that end, I

summarize the remarks I have gathered from The Social Contract in five central tenets:

I. Generality of Scope: The general will is only concerned with matters of

common interest that apply to all.
II. Objectivity of the Common Good: The general will only aims at the common
good and for any given law, it is an objective matter of fact whether it advances
the common good or not.37
III. Motivational Efficacy: Because the common good is a function of the citizens’
common interests, every citizen can have and be motivated by a conception of
what the general will is.
IV. Benevolence: The general will treats every citizen-subject equally and
benignly.
V. Procedural Approximation: The general will is reliably tracked by (i) the
vote of the majority provided that (ii) every citizen participates and (iii) that
each citizen votes on his or her individual opinion as to what the common good
is and requires in any given context.

If we take these five ideas as focal points for an interpretation of Rousseau’s general

will, it seems to me that several influential scholarly accounts turn out to be unsatisfactory.

For starters, a purely procedural interpretation of the general will is incompatible with both

does this absolute right stand in relation to the many and possibly conflicting judgments about it? Who is
entitled to decide what is right? Rousseau’s attempts to answer these questions produced a variety of
contradictions and evasions. Sometimes he said that the general will deals only with general questions and not
with particular persons or actions, thus leaving the application to private judgment, but this conflicted with his
assertion that the general will itself determines the sphere of private judgment. Sometimes he tried to make
the general will equivalent to decision by a majority, but this would imply that the majority is always right,
which he certainly did not believe. Sometimes he spoke as if the general will registered itself automatically by
making differences of opinion cancel each other. This opinion cannot be refuted but neither can it be proved.
It amounted to saying that communities—states or nations—have an inscrutable faculty for discerning their
well-being and proper destiny. Rousseau originated the romantic cult of the group, and this was the
fundamental difference between his social philosophy and the individualism from which he revolted” (1961,
pp. 591-592).
37 If the convergence of individual fundamental interests (i.e. the common interest) were not an objective
matter of fact, there could be no political society in the first place: “while the opposition of particular interests
made the establishment of societies necessary, it is the agreement of these same interests which made it
possible. What these interests have in common is what forms the social bond, and if there were not some point
on which al interests agree, no society could exist. Now it is solely in terms of this common interest that society
ought to governed” (SC II.1.1).

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the objectivity of the common good and the idea that constrained majority rule only

approximates, but fails to entail, the general will.38 The general will cannot be both aimed at

an objective concept of the common good and constituted by the vote of the majority,

whatever it turns out to be. The only way for a proceduralist to narrow the gap between the

two is to “multiply constraints” on the decision procedure, so that a certain “constant

conjunction” can be expected between the outcome and the objective common good.39 But

the more the constraints are multiplied, the more it seems like the value of the procedure is

derivative, if not disingenuous. Beyond a rather limited set of first-order moral constraints

on collective decision procedures—equal vote for all, access to reliable information,

generality of subject matter to be decided upon, and the like—it is difficult to see how more

robust constraints could be justified except by appeal to some procedure-independent idea

of what counts as an acceptable outcome. To put it in Rousseauian terms: the more a

proceduralist interpretation of the general will accommodates for its alleged “infallibility,”

the less it is a distinctly procedural interpretation.40

38 The idea of a purely procedural interpretation is akin to Rawls’s “pure procedural justice” or “the
intuitive idea… that the outcome [of some specified procedure] is just whatever it happens to be” (1999 [1971],
p. 74). Kaufman, for instance, explicitly adopts this line of interpretation, as he believes that Rousseau defines
“legitimacy in terms of pure procedural justice: laws enacted by the entire people, and applying to each citizen
in precisely the same way, are just” (1997, p.29). This also seems to be Ripstein’s (Hegelian) take on Rousseau,
to whom he attributes the view that “authority is ceded apart from its determinate content” (1994, p. 454).
Ripstein rightly acknowledged that his view entails that “the differences [between Rousseau and Hobbes] are
cosmetic, and at a deeper level, [Rousseau’s] position is no different from Hobbes’s” (p. 466n17). This last
inference, because correct, is a reduction of Ripstein’s own purely procedural take on the general will.
39 Sreenivasan 2000, pp. 576, 564.
40 This kind of difficulty pervades hypothetical and rational consent models of justification. To take
Rawls (1999 [1971]) as an example: we are told that the principles of justice are the result of an agreement (i.e.
a collective decision procedure) between a plurality of parties reasoning behind a veil of ignorance, as if the
agreement part carried some intrinsic moral significance. It is far from obvious why Rawls needs to postulate
such an agreement and, indeed, why he needs to imagine more than a single party behind the veil of ignorance.
One gets the impression that fairly robust moral commitments are unconvincingly made to pass for content-
agnostic procedural rules.

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On the other end of the interpretive spectrum, it would also be misleading to reduce

the general will to a “transcendent incarnation of the citizens’ common interest that exists in

abstraction from what any of them actually wants.”41 If that were the case, it would be very

hard to see how the general will, being so completely external to the citizen, could be

motivationally efficacious, or why a majoritarian assembly is the recommended method for

tracking it. Indeed, Robespierre must have thought of himself as an expert on the entirely

transcendent general will when he assured his fellow Jacobins that “Pour nous, nous ne

sommes d’aucun parti, nous ne servons aucun faction; vous le savez, frères et amis, notre

volonté, c’est la volonté générale.”42

It also follows from Rousseau’s core tenets about the general will that it cannot be

construed either as simply a kind of subjective volition. On this view, the general will

describes a specific sort of individual decision-making process (or “will”) that contrasts with

a “merely capricious and egoistic” type of volition.43 The allusion to Rousseau’s

psychological idea of “slavery” to “the impulsion of mere appetite” (SC I.8.2-3) is obvious, as

is the implication that the general will is essentially an account of the kind of self-legislation

necessary to achieve moral freedom. This approach has the serious defect of treating

Rousseau’s overtly political projects as being above all psychological, and it completely

neglects the relation between the general will and the non-psychological concept of civil

41 Bertram 2012b, p. 13. “Transcendent” interpreters of the general will include Cassirer (1945, p. 57)
and Landemore (2013, pp. 69.-70). As Yonah points out (1997, pp. 298-299), any “transcendent” interpretation
faces the additional exegetical difficulty of explaining the difference between Rousseau’s and Diderot’s idea of
the general will. For Diderot, “the general will in each individual is a pure act of understand that reasons in the
silence of the passions” (1967 [1755], §9), whereas for Rousseau it was decidedly not universal in that sense at
all: “this rule of justice [i.e. the general will], dependable with respect to all citizens, can be false with respect to
strangers” (PE 13, emphasis added).
42 Robespierre 1792, p. 506.
43 Riley 1992, p. 98.

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freedom. Rousseau was undeniably interested in realizing moral freedom, psychic

integration, and so forth, but overemphasizing that dimension of his thought runs the risk of

casting his entire political projects as a kind of social-scale psychotherapy.44

Of course, there is some textual support in The Social Contract for the purely

proceduralist, the “transcendent,” and the psychological interpretations of the general will.

But neither can make sense of everything Rousseau says about it. A better alternative is

Joshua Cohen’s elaborate analysis of the general will. Cohen tries to account for the general

will as both the will of the sovereign people and a special kind of individual volition; in both

cases, the general will “wills the common good, according to some shared understanding of

that good, guided by an account of the basic interests of members and their equal standing.”45

This identification of what the political community wills and what the individual citizen

ought to will helps Cohen develop a suggestion made by Rawls before him—viz., that

Rousseau’s general will is basically a theory of public reason avant la lettre.46 On Cohen’s

view, the general will is not so much the will of the sovereign people as such, but rather a

substantive constraint on the reasons citizens can appeal to when they legislate together.

There are two difficulties with Cohen’s proposal. First, it does not capture the depth

of Rousseau’s commitment to the sovereignty of the people, as Cohen’s model entails that

44 Riley takes Rousseau’s political project to be concerned above all with “the greatest misfortunes of
modern man: self-division, conflict between private will and the common good, a sense of being neither in one
condition of the other”—in short, as a cure for self-alienation (1992, p. 101). For similarly therapeutic
approaches to Rousseau’s politics, see p. 165n6.
45 Cohen 2010, p. 77.
46 “The appropriate grounds for basic laws is that they secure through social cooperation, on terms all
would agree to, the social conditions necessary to realize those interests. To express this idea from the point
of view of the general will, we say that only reasons based on the fundamental interests we share as citizens
should count as reasons when we are acting as members of the assembly in enacting constitutional norms or
basic laws… Note that the idea of a point of view, as used in these remarks, is an idea of deliberative reason…
and it admits only certain kinds of reasons as having any weight. Thus, it is clear from this that Rousseau’s view
contains an idea of what I have called public reason” (Rawls 2007, pp. 230-231). For Rawls’s theory of public
reason, see Rawls 1993, Lecture V (“The Idea of Public Reason”).

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“final authority” does not rest with the assembly of the whole as such but rather with “the

shared understanding of the common good.”47 It is the objective, supposedly equally

accessible idea of the common good that is truly sovereign. Cohen thinks this is equivalent

to popular sovereignty, but the equation only works because he elides Rousseau’s Hobbesian

ontology of the people and instead claims that the common bond, what makes the people

into a moral person, is a “a shared understanding of the common good and shared

recognition of the authority of that understanding” rather than the institution of the

sovereign.48 Second, as Cohen’s remarks indicate, his reading assumes too much of the

parties to the social contract, much more, I think, than Rousseau does (and with good

reason). Cohen’s general will can only exist provided that “Citizens share and it is common

knowledge that they share a conception of their ‘common good’.”49 Viewed this way, the

contractors would already have to have a lot more in common than Rousseau actually

presumes. In addition to their fundamental interests in self-preservation, well-being, and

freedom—which are indeed common knowledge—, citizens would also have to have a fairly

specific idea of what their common good is and they would each have to know that they all

have roughly the same such idea (and that each is sufficiently motivated by it). Cohen’s

approach assumes that citizens basically agree on what the common good is from the start,

before they set foot on the legislative assembly. I doubt that The Social Contract supports

such high expectations of ex ante moral agreement among the contractors or the citizens, nor

47 Cohen 2010, p. 33.

48 Ibid.
49 Op. cit., p. 40. This follows Rawls almost verbatim, for whom the general will is “the will of all citizens
as members of the political society”, that is, as sharing “a conception of their common good” as a matter of
“public knowledge between them” (2007 [1971], p. 224).

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should it lest the Republic of the General Will is only viable for an unusually homogeneous

group of people with deeply embedded common moral understandings.50

Cohen’s interpretation is guided almost exclusively by the ideal of moral freedom. In

Chapter 4.3 I argued that there is a difference between having an equal share of control over

the laws, as required by civil freedom, and being able to take the laws as expressions of one’s

own will, as expected from the point of view of moral freedom or “social autonomy.” Cohen

explicitly endorses the latter expectation when he speaks of “political autonomy” as

demanding more than “the idea that those who are subject to the laws ought to have fair

chances to participate in the process from which those laws issue.”51 Hence Cohen’s

commitment to finding an interpretation of the general will such that in obeying the laws

that give expression to it you are in fact “giving the law to yourself.” 52 Cohen goes farther

than this and explicitly minimizes the significance of civil freedom for Rousseau: “Rousseau

seems not to acknowledge a fundamental, shared interest in ‘individual independence’. I

have in mind an interest in guiding the conduct of one’s own life by a set of values and

principles with which one identifies.”53 The view I have been developing throughout Part II

50 This objection also applies to the Condorcetian account of the general will put forth by Grofman and
Feld (1988) insofar as they view “the process of voting not as a means of combining divergent interests but
rather as a process that searches for ‘the truth’” (p. 568). Talk of “search for the truth” suggests an equally
determinate notion of the common good in the background and neglects the importance of constructing the
right conception of the common good through democratic decision rules.
51 Cohen 2010, p. 73. Rawls (2007 [1971]) holds a similar view: “in obeying the law… we are acting not
only in accordance with the general will, but from our own will” (p. 235, emphasis added); “In conclusion: moral
freedom, then, once properly understood, is simply not possible outside of society. This is because that freedom
is the capacity to fully exercise and to be guided by the form of deliberative reason appropriate to the situation
at hand. That, for Rousseau, is what moral freedom is” (p. 237; cf. also p. 242).
52 Op cit., p. 74; “Assuming this identification with the associational goal (and that the associational goal
takes priority over personal goals), when members comply with the laws they follow their own will” (p. 85,
emphasis added). The assumption of “identification” is precisely what I find unpersuasive.
53 Op. cit., p. 44. This is not an isolated statement; on the contrary, it is a claim Cohen rehearses several
times throughout his book: “I do not think that Rousseau does in the end have a crisp account of the importance
of individual independence and its role in the society of the general will” (p. 47); “there is some suggestion—
though no more than that—that the protection of individual independence should itself be counted among the

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inverts this hierarchy of conceptions of freedom, taking civil freedom as the most important

achievement of political society and the fundamental interests of the contractors.

I do not mean to deny that there is a clear psychological dimension to the doctrine of

the general will. There is an intelligible sense in which I, as an individual citizen, have a

general will, namely, to the extent that I think about public matters from the perspective of

the common good as opposed to my self-interest narrowly conceived. But in another,

procedural sense, the general will just is the will of the sovereign people as it emerges from

the constrained vote of the majority. These ideas do not exclude each other.54 Nor are they

complete, for Rousseau categorically denies that constrained majority vote will always

express the general will. If the procedure is fallible, it cannot by itself be constitutive of the

general will and, more importantly, it is implied that there is some procedure-independent,

objective concept of the general will with which to contrast any actual outcome of the popular

assembly’s decision rule.

The purely procedural, transcendent, and public reason interpretations individually

account for parts of Rousseau’s theory of the general will, but none can claim to be exhaustive

of its role and meaning in his political theory. The only way to make full sense of Rousseau

on this matter is, I believe, to distinguish the psychological, objective, and procedural notions

of the general will in such a way that they are shown to be compatible and can jointly make

good on the five central tenets of generality of scope, objectivity of the common good,

shared basic interests of the members of the society of the general will” (p. 54); “there is not a fundamental
interest in personal independence” (p. 67).
54 Hence Screenivasan is right to say that “Whatever else it is, the general will is the will of this moral
body, that is, of the associates’ common self” (2000, p. 550), pace Rawls: “it is not, certainly, the will of an entity
that in some way transcends the members of society. It is not, say, the will of the society as a whole as such. It
is the individual citizens who have a general will” (2007 [1971], p. 224).

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motivational efficacy, benevolence, and procedural approximation through constrained

majority rule.

In defense of this tripartite approach to the general will, it is worth insisting on the

fact that there is a clear objective concept of the general will at play in Rousseau’s writings

on the subject. The general will wills the common good (SC II.1.1), and the common good is

aimed at protecting and advancing the common interests of citizens (SC II.4.7). Now those

interests are in turn a function of the fundamental interests shared by all the contractors as

a matter of common knowledge (self-preservation, well-being, and civil freedom or non-

domination, SC I.6.4). Therefore, because we know what those fundamental interests are,

we can construct an objective concept of the common good. This is, I think, the only way to

make sense of the infallibility and inalterability of the general will (SC II.3.1 and SC IV.1.6,

respectively) and the idea that it is epistemically accessible to the average citizen (SC IV.1.1).

Notice that the objective concept of the general will also explains why it must always be

general in scope; if it were not, then it could not be construed as tracking the common

interests of all, but only the particular (and perhaps not even fundamental) interests of some

(SC II.4.5).

The objective concept of the general will is the evaluative standard used by Rousseau

to assess the success or failure of the assembly when it purports to track it through its

majoritarian decisions. While the (objective) general will is “always upright”, the

“judgement” that tries to express it “is not always enlightened” (SC II.6.10). The important

point is that the objective general will is open-ended or indeterminate; it admits of multiple

valid interpretations of what exactly it requires at the level of policy and legislation. But this

indeterminacy does not mean that any law or policy will do; it does in fact rule out

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institutions like voluntary servitude or the abolition of private property. There is, as a matter

of fact, no plausible account on which such policies could advance the common, fundamental

interest in the protection of property and the realization of civil freedom. The objective

concept of the general will serves as a negative regulative idea against which to assess the

outcomes of the procedure designed to approximate it. The objective concept of the general

will excludes all untenable interpretations of the common good without fully specifying

which conception of it is to be expressed in the law.

As a result of its indeterminacy, the objective general will is by itself inert, which is

why a decision rule is needed to specify its content and give it practical reality in the Republic

of the General Will.55 Rousseau’s proposal is that we are most likely to hit on a valid

conception of what the common good demands by fixing the people’s sovereign will through

a constrained majoritarian decision. There are two broad arguments Rousseau offers in

support of this democratic procedure. The first is that it is the most likely to reliably express

a valid conception of the (objective) general will. The second is that it is intrinsically

preferable because it expresses the moral equality of citizens, is necessary for their moral

freedom, and is partially constitutive of their civil freedom.56

Let me consider first the instrumental case for democratic law-making, to the effect

that it is the best procedural approximation to the (objective) requirements of the general

55 On the importance of interpreting the general will as a practical, political fact that has “real effects
within the relevant political community,” see Sreenivasan 2000, p. 546.
56 I think Rousseau clearly means that there must be an actual procedural specification of the general
will. I therefore disagree with Dent’s “hypothetical” agreement reading of Rousseau on democratic law-making:
“whatever Rousseau has in mind when he speaks of the general will coming from all he does not have in mind
an actual process where actual individuals give voice to their views; the scope for muddle and ignorance is too
great” (2005, pp. 137-138). If the laws did not actually come from all, they would be arbitrary and therefore
dominating (as I argue in more detail in the following section); and if Rousseau was unconcerned with actual
procedures, why would he worry so much about the very concrete phenomenon of factionalization?

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will. The main idea is this: (i) every citizen is a (roughly) equally competent judge of what

furthers his or her individual fundamental interests; (ii) when asked to consider a suitably

general question of law, the individual citizen’s own interests can only be furthered by

enlarging his perspective on the effects of the law, asking him- or herself how the proposal

affects the average citizen.57 This is precisely the way in which the procedure for tracking

the general will facilitates “an admirable agreement between interest and justice” (SC II.4.7).

Provided each individual votes on his or her own opinion of the proposal under

consideration, (iii) the more voices the procedure aggregates or consults, the more likely it

is to track a valid conception of the common good. This is why all votes must be counted (SC

II.2.1n), or why the law must “issue from al” (SC II.4.5).58

In addition to these, I think Rousseau also has principled reasons to recommend a

democratic law-making process. The first is that equal participation in the legislative

assembly is, if not a requirement, at least an important expression of citizens’ moral

equality.59 Democratic legislation contributes to society’s substitution of “moral and

legitimate equality for whatever physical inequality nature may have placed between men”

57 This idea is the converse of Rousseau’s claim that “judging what is foreign to us, we have no true
principle of equity to guide us” (SC II.4.5).
58 It has been often said that Rousseau’s instrumental argument for democracy follows the same logic of
Condorcet’s jury theorem (Grofman and Feld 1988). The Condorcetian interpretation is supposed to have the
especial advantage of explaining why voters must only vote their own opinion; otherwise, each citizen’s
probability of being “right” would not be independent, as required by the theorem. But we do not need the jury
theorem to make sense of this constraint on the assembly’s deliberation. Rousseau has a much deeper reason
to require that each citizen vote only his or her own opinion—namely, preventing the assembly from becoming
factionalized and hence a dominating will with respect to the minority. I discuss the problem of factionalization
in detail in Chapter 6.
59 I adopt this idea from Douglass (2013, pp.743-744), though I disagree with his inference that
representative legislation is inconsistent with moral equality because it always involves “individuals having
greater legislative right than others” (Douglass 2015, p. 127). Sheer inequality of political power cannot be a
problem for Rousseau, as it would also militate against having an independent government (given that
magistrates obviously have more political power, individually, than regular citizens). The problem is that
representative legislation fails to give proper expression to the (conventional fact of the) moral equality of
citizens.

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(SC I.9.8). To that extent, it provides an egalitarian form of recognition which can in principle

satisfy the demands of amour-propre and channel its psychic force towards relatively

virtuous dispositions.60 Democratic procedures also seem necessary, albeit not sufficient,

for citizens to become morally free while obliged to obey the laws. If there is any hope of

equating obedience to the laws passed by a majority to obedience to the individual citizen’s

self-given laws, then surely one must have at least partaken in the process of legislation.61

Most importantly, sharing equally in the power to legislate is, for Rousseau, constitutive of

civil freedom. Recall that civil freedom is about not being dominated, or not being subject to

an arbitrary alien will, in whatever one does within the limits set by the general will, that is,

by the laws as expressions of the objective concept of the general will (SC I.8.22). Now the

way in which those limits are imposed cannot itself be an instance of domination. And indeed

it is not when each citizen has an equal share of control over what those limits shall be.

These are, then, the arguments for Rousseau’s endorsement of constrained majority

rule as the best way to approximate an adequate conception of the objective common good.

60 See Chapter 4.2 on egalitarian and non-competitive forms of recognition or amour propre.
61 This is precisely the strand of argument pushed by the “social autonomy” interpretation, which tends
to make this necessary condition into a sufficient one as well. Neuhouser, for instance, holds that “for Rousseau,
a political community in which autonomy, and not merely negative freedom, is realized must be a democracy,
in which individuals are simultaneously givers of the law and subject to it… For in those instances where the
law prohibits me from acting as I desire, my will is constrained by something external to it, and I am therefore
unfree— unless the laws that limit my actions also come from me (which is to say: unless I am in some sense
the author of the laws that constrain me). In that case, I would still be constrained but not by anything external
to me. In obeying a law that came from me, I would ultimately be obeying only myself, and this—obeying only
yourself (SC, I.6.iv)—is for Rousseau the essence of freedom in all its forms” (1993, p. 481).
The republican idea of non-domination explains why we should reject Neuhouser’s crucial move in
this passage from “my will is constrained by something external to it” to “I am therefore unfree.” The flip side
of this is the specious inference from “the majoritarian will of the people is not external to me” to “the
majoritarian will of the people is my will.” This is the gap that the Rawls-Cohen public reason approach tries
to bridge by assuming that there is a fairly determinate conception of the common good that all citizens share
as a matter of common knowledge. If the majority vote expresses that shared conception, then the inference
from not-external-to-my-will to identical-to-my-own-will seems easier, thought I still find it unconvincing.
As I will discuss in more detail in Chapter 5.3, and contrary to what the social autonomy interpretation
contends, if the external constraint is not a dominating agency (i.e., an alien and arbitrary will), then it does not
render me unfree. This is precisely why the rule of law is consistent with, and constitutive of, my civil freedom.

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As for the psychological notion of the general will, it remains important because it explains

how individual citizens can contribute the best possible input to maximize the prospects that

the constrained vote of the majority will indeed express the (objective) general will. All we

need to assume is that citizens can consider public affairs from an impartial (though not

necessarily self-less) point of view, and that they can be motivated to act on such

considerations.62 The stronger the citizenry’s sense of impartiality, and the more that aspect

of their volitional structures takes priority over narrow self-interest, the more reliably will

democratic legislation track the general will and, indeed, the more fully will moral freedom

be realized in the Republic of the General Will.63 However—and this is an important point—

, the procedure can still track the general will even if the citizenry at large is not fully virtuous

in this sense. Rousseau suggests as much in saying that even when the citizens are not being

as public-spirited as they should, the general will can still result from “the sum of the

differences” when “one takes away the pluses and minuses which cancel each other out” (SC

II.3.2). The democratic procedure coupled with a sufficiently virtuous disposition in the

citizenry jointly justify Rousseau’s reasonable expectation that the will of the sovereign

people will tend to be benign (SC I.7.5) and egalitarian (SC II.1.2). “Thus the social contract

never has need of any guarantee other than the public force, because the injury can come

62 What I mean by this is analogous to Thomas Nagel’s theory of the two moral standpoints, the personal
and the impersonal (1991, pp. 10-20). Nagel’s idea is perfectly consistent with Rousseau’s philosophical
anthropology, particularly with the two innate motives of amour de soi and compassion which in civilized
human beings, given the right background practices and institutions, can be expressed as an egalitarian form
of amour propre and a moralized sense of justice.
63 Another way to put the point is that there is a threshold level of virtue—of the psychological general
will actually having a grip on each citizen’s public deliberations—that suffices to get the Republic of the General
Will up and running. But this Republic will be better as its citizens become more virtuous. This is just to invert
the order of factors in Rousseau’s claim that “The better constituted the State, the more public business takes
precedence over private business in the minds of Citizens” (SC III.15.3).

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only from individuals; and in that case they are not thereby free from their commitment but

are punished for having violated it” (E V, p. 461).

In concluding my argument for the three notions of the general will, I would like to

call attention to the passage that most clearly summarizes most of what Rousseau had to say

about the general will. In it, the three notions of the general will I have discussed come

together nicely: “The body politic is, then, also a moral being that has a will, and this general

will [procedural], which always tends to the preservation and the well-being of the whole

and of each part [objective], and which is the source of all the laws [procedural], is, for all the

members of the state [psychological], in relation to one another and to it, the rule of what is

just and what unjust” (PE 12).64

I have repeatedly referred to the popular assembly’s majoritarian decision procedure

as “constrained.” Some of the constraints have already been pointed out, including the

universal franchise (nobody can be formally excluded from voting) and that the agenda must

be restricted to laws qua decisions of general scope and equally binding on all citizens. I

should like to focus for the moment on an additional, crucial condition for Rousseau: that the

legislative assembly must not be factionalized or, what comes to the same thing, that each

citizen ought to vote on his or her own considered opinion of the best conception of the

common good. While there are instrumental considerations that can be marshalled in

64 The objective concept of the general will may go some way towards responding to Hegel’s critique of
Rousseau. As Ripstein explains it, Hegel’s objection is aimed at the alleged “arbitrariness” of the general will.
For Hegel, “the content of the general will is arbitrary in relation to the structure that is supposed to give it its
claim as right. The same structure could incorporate a different content while retaining its claim, which
suggests that the content is besides the point—“arbitrary” in Hegel’s phrase… Neither formal features of
generality nor community acceptance can resolve the problem of arbitrariness because each could equally well
have taken any other content” (Ripstein 1994, p. 452). If I am right to argue that there are objective standards
in light of which we can assess the plausibility of a procedurally specified conception of the common good, then
the general will is, yes, open-ended, but by no means arbitrary.

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support of this constraint,65 there is a very important principled argument for it as well—to

wit, that a factionalized legislative assembly would be a dominating will with respect to the

citizen who finds him or herself in the minority. A faction is a subset of the citizenry that has

a corporate will of its own distinct from the will of the people as a whole. It is a “partial

society in the State” (SC II.3.4), a moral person in its own right whose corporate will is

“particular” in the sense that it targets its common good, not that of the society at large.66

When a faction forms, the citizens who belong to it will presumably vote in concert when

legislating in the assembly of the whole. The votes of the factionalized citizens are not theirs

individually, but rather so many expressions of one and the same “particular” corporate will.

Factions wreak havoc not only by undermining the tendency of the majority to track a valid

conception of the (objective) common good; what is worse, should a faction come to control

the majority, everyone else will be invariably subject to laws passed by the alien will of a

corporate agent to which they do not belong. Since the citizen who is excluded from the

faction has no share in controlling its particular corporate will, the faction is an arbitrary will

with respect to him. Just as equal control over what the laws should be renders the will of

the people consistent with civil freedom, so an entrenched majority faction destroys it. 67

65 See p. 261n61.
66 The corporate will of the faction has one relation towards its members, another towards outsiders:
“The will of these particular societies always has two relations; for the member of the association, it is a general
will; for the large society, it is a particular will” (PE 15).
67 This line of reasoning supports judicial policing over “what majorities do to minorities,” a thought that
makes the most sense when the majority is a group agent or corporate will or faction (Ely 1980, p. 76). This is
the spirit of Justice Harlan F. Stone’s famous Carolene Products footnote: “prejudice against discrete and insular
minorities may be a special condition, which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching
judicial inquiry” (United States v. Carolene Products Co., 304 U.S. 144 [1938]).
The formation of factions is a sign of political decline, but it only issues in domination when factions
have the capacity to tilt the scales of the vote. Rousseau thus treats factionalization as a process: “when
particular interests begin to make themselves felt, and small societies to influence the larger society, the
common interest diminished and meets with opposition, votes are no longer unanimous, the general will is no
longer the will of all” (SC IV.1.4).

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When the will of the sovereign people just is the will of a majoritarian faction, the citizens in

the minority become estranged from their own political community: they come to live under

the tyranny of the majority.68

The problem with factionalization is so deep that, in a sense, a factionalized assembly

cheats on the terms of the social contract. Remember that “The law of majority rule is itself

established by convention, and presupposes unanimity at least once” (SC I.6.3). This is

equivalent to an alienation of each contractor’s private judgment as to what should be the

authoritative conception of the common good to be expressed through the laws. Upon

consenting to the terms of the social contract, “the Citizen is no longer judge of the danger

the law wills him to risk, and when the Prince [i.e., the government] has said to him, it is

expedient to the state that you die, he ought to die” (SC II.5.2). Less dramatically, perhaps,

Rousseau explains that “the Sovereign is alone judge of that importance,” that is, of the

importance of what one has to give up for the community to use (SC II.4.3). In other words,

the contractors “accept limitations on their moral sovereignty. …the ideal of complete

individual sovereignty is replaced by that of equal, shared moral sovereignty.”69 It is rational

for the contractors to alienate their private judgment to the majority on all matters of public

interest if and only if they have good reason to trust that most others will most of the time

exercise their (equal) share of sovereignty in good faith, that is, aiming at the common good,

68 The phrase is Tocqueville’s (2000 [1835], esp. Vol. I, Part 2, Ch. 7) not Rousseau’s, but the main idea is
the same. The effects of the tyranny of the majority on the individual citizen are analogous to Rousseau’s
characterization of how an individual stands with respect to a foreign community’s general will: “in that case
the will of the state, although general with respect to its members, is no longer so with respect to the other
states and their members, but becomes for them a particular and individual will” (PE 13)
69 Neouhouser (2011, p. 490). Neuhouser and Pettit (2016, p. 186) are among the very few
commentators who explicitly take notice of the alienation of private judgment in Rousseau. Recall that for
Hobbes, the alienation of private moral judgment to the sovereign is one of the crucial achievement of the social
contract, the only possible solution to the problem of evaluative indexicality (see Chapters 1.2 and 2.2).

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however they conceive of it from their individual points of view. When a citizen joins a

faction, he is not admitting to being an incompetent judge of what the common good

requires; worse still, he is disavowing the very attempt to consider the laws in light of the

common good. A factionalized assembly betrays the implicit trust of the contractor in her

fellow citizens as bona fide judges of the demands of the common good.70 How to support

such trust is an important problem for Rousseau, to which I return in Chapter 6.2.

5.3 Brave Free World

The preceding analysis of Rousseau’s theory of the general will finally leaves us in a

position to meet the challenge we encountered in connection with the absolute sovereignty

of the people: How is the Republic of the General Will a solution to the problem of

domination? How is the will of the sovereign people not a dominating one itself? How, in

other words, does the Republic of the General Will realize the ideal of civil freedom?

As I explained in Chapter 4.3, there is a critical difference between obeying one’s own

will only, on the one hand, and not being dominated, on the other hand. The negative

requirement of non-domination excludes a specific source of interference—namely, the

arbitrary because uncontrolled will of another.71 But this is obviously not the only source of

possible interferences that there is. My actions may also be impeded by natural, physical

70 This line of argument was suggested to me by Ripstein’s claim that “In accepting the general will, each
member of the community endorses its principles and also recognizes the other members of the community as
competent judges and critics of one’s own interpretation of what the general will demands” (1994, p. 449).
However, I think Ripstein takes this idea too far in arguing that “each recognizes the others as a better judge of
the general will” (ibid., emphasis added). This is surely implausible and unnecessary. It suffices to say that
each recognizes others as prima facie equally competent judges.
71 See the discussion of Rousseau’s concern with arbitrariness in Chapter 4.3. For a more detailed
argument about the centrality of arbitrariness to the concept of domination, see Pettit 1997, pp. 22-26.

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obstacles. Nature as such is a source of interference, but not a dominating one. It makes no

sense to construe the relation between an agent and nature as analogous to that of a slave to

a master. Moreover, my actions may be frustrated or undercut by non-natural constraints

like social norms and practices. Though not natural, they are not necessarily dominating in

case they are not arbitrary. My desire to park anywhere I want in Manhattan may be

repeatedly frustrated by traffic regulations (and its enforcers), but this constraint on my

natural freedom is not arbitrary. I know exactly what the rule is and I can count on it being

the same today as it will be tomorrow; more importantly, the rule was imposed by officials

who act under the collective control of the citizenry, myself included. I can rely on the rule

remaining constant, and provided it is equitably enforced, I can reasonably expect that I will

not get a ticket if I do not transgress it. Contrast this with the position of a slave or servant,

who is never in a position to form similarly reasonable and reliable expectations about the

master’s will because the latter is in no way constrained to heed the slave’s interests. Of

course, though not arbitrary, traffic rules are obviously not “my own will”: I do not obey

myself in respecting them, nor do I obey myself in paying a parking ticket when I disregard

them. This is just to say that self-mastery, or obedience to my own will only, is not the only

alternative to domination.

Rousseau had a clear grasp of the possibility and significance of non-dominating

forms of interference. In fact, Jean-Jacques’s model of “negative education” consists precisely

in the masterful deployment of invisible intentional interferences designed not to be

perceived as dominating by the young Emile. Rousseau indicates, with his usual

psychological insight, that reactive attitudes—anger, resentment, indignation, and the like—

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arise not out of unfortunate events as such, but the perceived ill will of another who

contributes to or is responsible for bringing about such events:

What transforms this instinct into sentiment, attachment into love, aversion
into hate, is the intention manifested to harm us or to be useful to us. One is never
passionate about insensible beings which merely follow the impulsion given to them.
But those from whom one expects good or ill by their inner disposition, by their will—
those we see acting freely for us or against us—inspire in us sentiments similar to
those they manifest toward us. We seek what serves us, but we love what wants to
serve us. We flee what harms us, but we hate what wants to harm us. (E IV, p. 213;
emphasis added)72

Notice that hatred (and love) are grounded in the perceived freedom with which

another acts towards one; the harm (of benefit) must originate in the other’s arbitrium,

which is beyond one’s control. In the context of Emile, the important implication is that Jean-

Jacques has to constantly hide the intentional character of his interferences because the

young Emile is unable to perceive refusals as anything other than affronts and offenses. The

idea of a non-capricious, non-malign intentional interference is beyond the child’s grasp. 73

Jean-Jacques thus faces the following dilemma: he can openly refuse the child’s demands as

a will, as an uncontrolled arbitrium, or he can structure the child’s world in such a way that

every refusal comes across as the necessary, inflexible outcome of a natural law beyond

anyone’s possible intentional control. The former is the standard educational model, the one

Rousseau intends to replace with a “negative education” that situates Emile in a world

72 Rousseau had already made a very similar point in the Second Discourse: “From here arose the first
duties of civility even among Savages, and from it any intentional wrong became an affront because, together
with the harm resulting from the injury, the offended party saw in in it contempt for his person, often more
unbearable than the harm itself” (SD II.17).
73 Allan Bloom is right to highlight this point in his Introduction to Emile: “In early childhood, there is a
choice: the child can see everything or nothing as possessing a will like his own. Either whim or necessity
governs the world for him… Since an uncorrupt will does not rebel against necessity, and the tutor can
manipulate the appearance of necessity, he can determine the will without sowing the seeds of resentment.”
(1979, pp. 12-13).

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wherein he encounters “resistance only in things and never in wills” (E I, p. 66).74 “Let him

see this necessity in things, never in the caprice of men. Let the bridle that restrains him be

force and not authority… for it is in the nature of man to endure patiently the necessity of

things but not the ill will of others” (E II, p. 91). This is necessary because the young Emile

is not yet capable of understanding the possibility of non-arbitrary forms of intentional

interference.

Jean-Jacques’s pedagogical model—enforcing rules carefully designed as artificial

analogues of non-intentional, blind natural laws—is one of the ways in which Rousseau

expresses his conviction that the “goal of education is nature” (E I, p. 38). Emile is truly made

to feel that he “gets his lessons from nature and not from men” (E II, p. 119) thanks to Jean-

Jacques’s masterful yet invisible hand (E II, p. 120). Because nature is impervious to cries,

prayer, threats, and exhortations, the child soon realizes that reactive attitudes are out of

place in response to unsatisfied desires and cravings. The tutor’s disregard for Emile’s

whims will have the facticity of unforeseen rain ruining an outdoors game. In Emile’s world

of things rather than wills, there is no use for manipulation; it being useless—“for [things]

do not hear him” (E I, p. 66)—, Emile never develops the animus dominandi that can make

modern children implacable despots.75 “Your child ought to get a thing not because he asks

74 This is Rousseau’s diagnosis of the educational practices of his day, as he sees them: “Either we do what
pleases him, or we exact from him what pleases us. Either we submit to his whims, or we submit him to ours.
No middle ground; he must give orders or receive them. Thus his first ideas are those of domination and
servitude. Before knowing how to speak, he commands; before being able to act, he obeys… He is the man of
our whims; the man of nature is differently constituted” (E I, p. 48). In keeping with his philosophical
anthropology (see Chapter 4.2), Rousseau insists that the animus dominandi associated with Hobbesian man is
the product of (inadequate) socialization, not nature: “The capriciousness of children is never the work of
nature but is the work of bad discipline. It is that they have either obeyed or commanded, and I have said a
hundred times that they must do neither” (E II, p. 121).
75 Rousseau appears to think that once children perceive their dependence on other people’s arbitrium,
they inevitably develop a desire to dominate—a desire that, on the face of it, is perfectly instrumentally rational:
“Children begin by getting themselves assisted; they end by getting themselves served. Thus, from their own

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for it but because he needs it, and do a thing not out of obedience but only out of necessity.

Thus the words obey and command will be proscribed from his lexicon… Before the age of

reason one cannot have any idea of moral beings or of social relations… arrange it so that on

all sides he perceives around him only the physical world” (E II, p. 89).76 This is the heart of

Jean-Jacques’s art as a tutor: to shield Emile from growing up with the constant feeling that

he depends on the uncontrolled will of other people.77 Jean-Jacques is the master of “well-

regulated freedom,” guiding “Emile where [he] wants by the laws of the possible and the

impossible alone… by the force of things alone” (E II, p. 92). Not feeling dominated at any

point, Emile develops no desire to dominate others. The entirety of Jean-Jacques’s

pedagogical approach is a deliberate exploitation of the possibility of intentional yet non-

arbitrary forms of interference the impersonality of which resembles the operation of the

laws of nature.

To summarize: there are two kinds of sources of (possible) interference, intentional

and non-intentional or natural. Intentional interference comes in two varieties: arbitrary

and non-arbitrary. Only intentional and arbitrary (because uncontrolled) sources of

weakness, which is in the first place the source of the feeling of their dependence, is subsequently born he idea
of empire and domination” (E I, p. 66).
76 Emile’s world of things rather than wills has the additional benefit of inculcating resilience, grit, and
endurance. These volitional capabilities lay the groundwork for Emile’s later efforts to become morally free
(or master over his own passions): “He bears [necessity’s] yoke from his birth. Now he is well accustomed to
it. He is always ready for anything” (E II, p. 161); “he knows constancy and endurance because he has not
learned to quarrel with destiny” (E III, p. 208). Thanks to the will power his early education has helped him
develop, Emile will one day say, “Rich or poor, I shall be free… All the chains of opinion are broken for me; I
know only those of necessity” (E V, p. 472).
77 Rousseau illustrates his vision of negative education by means of a concrete example. If you want to
teach a child not to lie, spare him or her speeches about duty and obligation; instead, make sure the lie has
consequences. It is critical that the consequences carry the perceived inevitability of natural causality; they
must be impersonal in that they respond blindly to the lie, not maliciously to the person of the liar. They cannot
be seen to be the intentional punishment inflicted by someone who could have done otherwise: “the lie attracts
evils to him which he sees as coming from the very order to things, and not from the vengeance of his governor”
(E II, p. 102).

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interference constitute domination proper. Indeed, arbitrariness is for Rousseau the

defining attribute of illegitimate authority: “Arbitrary Power, being by its Nature illegitimate,

cannot have served as the foundation for the Rights of Society” (SD II.43).78 The question we

must consider, then, is how the Republic of the General Will is supposed to eradicate the

possibility of arbitrary interferences in the affairs of its citizens.

Let us consider first the case of personal domination, or subjection to the arbitrary

will of another individual citizen. This is the defining problem of civilized life, as Rousseau

explains through his conjectural history of the human species.79 The Republic of the General

Will minimizes personal domination in two ways. This it does, first, by radically

restructuring the inequalities that lead the marginalized and destitute to be subject to the

will of the powerful and rich in order to provide for their basic economic and psychological

needs. To that end, the Republic of the General Will must ensure a large measure of economic

equality: “no citizen [ought to] be so very rich that he can buy another, and none so poor that

he is compelled to sell himself” (SC II.11.2). Severe economic inequalities must be addressed

because “it is always between these two [i.e., the very rich and the beggars] that there is a

trafficking in public freedom; one buys it, the other sells it” (SC II.11.2n). The procedural

specification of the (objective concept of the) common good can be expected to bring about

this condition of material equality because it is clearly in the interest of most citizens, even

78 In this as in several other subjects, Rousseau followed Montesquieu, who repeatedly emphasized the
evil of arbitrariness and the rule of law as its social cure: “Aristocracy is corrupted when the power of the nobles
becomes arbitrary… In that case the republic continues to exist only with regard to the nobles and only among
them. The body that governs is a republic and the body that is governed is a despotic state” (1989 [1748], Part
I, Book 8, Ch. 5 [p.115]); “It is the triumph of liberty when criminal laws draw each penalty from the particular
nature of the crime. All arbitrariness ends; the penalty does not ensue from the legislator’s capriciousness but
from the nature of the thing, and man does not do violence to man” (op. cit., Part II, Book 12, Ch. 4 [p.189]). See
Chapter 4.3 for an extended discussion of Rousseau’s idea of arbitrariness.
79 See Chapter 4.3.

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of those who may be rich today but cannot count on always being so in the future. In an

egalitarian society, nobody would have reason to defer to another’s will in order to satisfy

basic wants. No one would have to spend his life “loitering ignominiously at the mercy of”

others, “eating the vile bread of charity” (E IV, p. 311). With respect to dependence rooted

in our psychological needs, the Republic of the General Will creates frequent opportunities

for the affirmations of one’s own worth—of one’s egalitarian amour propre—by allowing

every citizen to participate in the regular gatherings of the legislative assembly on an equal

footing. Equal shares of sovereign power constitute a form of public recognition of one’s

equal moral worth and they give the lie to any individual who claims to have higher moral

standing than the rest. Though perhaps not sufficient for a fully secure sense of self, this

public affirmation of the citizen’s social status goes some way—a long way, one might say—

towards satisfying psychological needs without enabling dynamics of reverence or

submission.80

While background economic equality and the public affirmation of citizens’ equal

moral standing do in fact reduce the opportunities for relations of domination to arise, the

Republic of the General Will does even more than that. It also established spheres of

individual action that are legally insulated from interference by others, who would make

themselves liable to be punished by the state in the event of transgression. In other words,

the Republic of the General Will creates and enforces individual rights. This is why Rousseau,

in the passage where he introduces the concept of civil freedom, immediately connects it

80 For a similar argument about how the general will is “a shared evaluative standpoint” that helps to
solve the “problem of recognition,” see Ripstein 1994, p. 448. The Republic of the General Will does not need
to set itself the implausibly high bar of ensuring that every citizen completely overcome self-alienation. That
would presuppose that all social interactions and every sphere of social life must come under the state’s
intentional control, as in Plato’s Republic. The Republic of the General Will is not, nor should it purport to be,
totalitarian.

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with property rights (SC I.8.2). As he explains, the total alienation required for the act of

political incorporation is reverted, as it were, once the Republic of the General Will is set up.

“What is remarkable about this alienation is that the community, far from despoiling

individuals of their goods and accepting them, only secures to them their legitimate

possession, changes usurpation into a genuine right, and use into property. Thereupon the

possessors, since they are considered to be the trustees of the public good, since their rights

are respected by all the members of the State and preserved by all of its forces against

foreigners, have, by a surrender that is advantageous to the public and even more so to

themselves, so to speak acquired everything they have given” (SC I.9.6). The alienation was

required to create the (absolute) sovereign, the moral person of the people; otherwise, it

would have been impossible “to form, by aggregation, a sum of forces” (SC I.6.3) strong

enough to enforce the individual rights created by the political community itself. The same

logic explains Rousseau’s defense of “the simple right to vote in every act of sovereignty, a

right of which nothing can deprive Citizens” (SC IV.1.7). Through the individual right to vote,

the opportunity to publicly affirm one’s equal standing in society becomes a guarantee

protected by the state from anyone else’s attempts to prevent me from accessing it. Material

equality, democratic law-making, and individual rights resolve the problem of systematic

personal dependence, of subjection to the will of any other individual person.

Granted that the Republic of the General Will can secure civil freedom in the relations

among citizens, the question remains whether the state itself does not become a dominating

agent with respect to its subjects. Rousseau does not need to show that the will of the

sovereign people—the procedurally specified conception of the objective general will—is

“my will.” As we have seen, a source of possible intentional interferences is not dominating

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merely in virtue of not being “my will”: it is dominating only in case it is also arbitrary, that

is, intentional yet uncontrolled. We do not need to show that the laws are in fact expressions

of my own, individual will, as the social autonomy interpretation demands. (To be sure,

Rousseau sometimes writes as if this was exactly what he meant. But as I will argue in

Chapter 6.1, the republican interpretation can make good sense of such passages without

saddling Rousseau with the implausible idea that the laws are literally “my” will.) We only

need to show that the will of the sovereign people is not arbitrary with respect to its subjects.

This is a more sensible, reasonable expectation—which is yet another reason to favor the

republican reading of Rousseau over the social autonomy alternative.

The reasons why the Republic of the General Will does not constitute a form of

political domination are captured by Rousseau’s dual requirement that the laws “must issue

from all in order to apply to all” (SC II.4.5).81 Consider first the way in which the law operates,

that is, how it “applies to all.” As I explained in Chapter 5.2, the laws qua expression of the

general will must be general in scope. That is to say, they can only speak in a way that treats

every citizen equally and addresses them all generally and impartially. It does not, it cannot,

target any particular person at any time: “the law considers the subjects in a body and their

actions in the abstract, never any man as an individual or particular action” (SC II.6.6). The

rule of law is partly defined by a benign indifference to individual persons; it treats them

with an impartiality that resembles the operation of the laws of nature. The rule of law

replicates at the political level Jean-Jacque’s method of “well-regulated freedom” as Emile’s

81 Stilz (2009) also takes Rousseau’s democratic, popular sovereign to be non-dominating because it is
not arbitrary. However, she does not clearly state what arbitrariness involves, in her view or Rousseau’s. The
most we get is an implicit equivalence between that which is nonarbitrary and that which is “impersonal” (pp.
57, 67, 73-74); the “arbitrary” is associated with what is “potentially capricious” (p. 71). In the main text I go
into greater detail about the importance of impersonality and accountability or control (both opposed to
caprice) and argue that there is good textual evidence to attribute this notion of arbitrariness to Rousseau.

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tutor: like Emile’s, the world of the citizen of the Republic of the General Will is of “things

rather than wills” in that the laws are the same for all. The rule of law is non-arbitrary

because it does not operate capriciously, on the basis of unprincipled and selective targeting

of (classes of) individual citizens. Moreover, the rule of law is non-arbitrary in the sense that

it is reliable. As with the parking regulations, I know what the laws are today and I can

reasonably expect that they will remain the same tomorrow. Unlike the slave in relation to

the master, the citizen can be confident that the legal limitations within which he must

pursue his projects will not change without reason (i.e. arbitrarily), and that they will

certainly not change out of malice towards him personally. Changes in the law are

categorically different from the varying moods of a capricious master.

Generality, impersonality, and predictability party explain why the rule of law makes

the Republic of the General Will non-arbitrary, and so non-dominating. Now the laws, like

any other intentional source of interference, are subject to change, and the way in which they

change (or are enacted in the first place) is decisive to Rousseau’s solution to the problem of

political domination. Because in the Republic of the General Will sovereignty is inalienably

the people’s, citizens collectively control the laws and each subject-citizen individually plays

a role, an equally decisive role to boot, in instituting or changing them. The laws “issue from

all,” as Rousseau says. Though the law is not entirely within my individual control—which

is why it is nonsense to say that it is “my own will”—, I still exercise control over it on an

egalitarian basis along with my fellow citizens. The procedural, democratic dimension of the

general will thus contributes to making the law non-arbitrary and, consequently, non-

dominating; the legislator is not an alien arbitrium, but instead a collective agent whose

composition and collective decision procedure are designed to track the common good as

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the majority of citizens conceive of it. Precisely because it conjoins the rule of law and

popular sovereignty, only the Republic of the General Will bestows upon its subjects the

status of civitas, of equal co-legislators each enjoying the protection of the same laws. “As if

there were citizens who were not members of the city, and who did not as such have a part

of the sovereign authority!” (E IV, p. 337n).

To the extent that people participate in the legislative assembly, and provided there

is no evidence of factionalization, nobody has reason to regard the laws as alien, arbitrary

impositions. They are merely the expression of the most widely shared conception of the

common good, one coming from fellow citizens who are thinking about what is best for each

and for all in good faith. (The best evidence of their good faith is the generality of the laws

themselves: insofar as they “apply to all,” the majority is putting its money where its mouth

is.) Democratic legislation thus makes it very likely (or so Rousseau thinks) that the law will

effectively track the common interests of citizens. As a matter of general fact, then, the laws

of the Republic of the General have an overall positive effect on most citizens most of the

time.

In connection with Rousseau’s account of popular sovereignty, I explained that it

cannot be represented in its legislative capacity, but that it can nevertheless delegate the

exercise of its original executive power to an independent government. Rousseau’s

assurance that the Republic of the General Will is not dominating must therefore extend to

an account of governmental action, not merely sovereign legislation.

Rousseau, like Hobbes, admits that absolute sovereignty is consistent with various

forms of arranging government (or, in Hobbes’s words, administration). Absolutism, they

both believe, is logically necessary for there to be a people or state; but the regime type itself

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depends on other, less logically strict considerations.82 For Rousseau, “the question, which

is absolutely the best Government, does not admit to a solution because it is indeterminate”

(SC III.9.1). The options, however, are clear enough: the sovereign people may choose to

exercise its executive authority directly, in which case the Republic of the General Will would

be a democracy (SC III.3.2); or it could delegate its original executive authority to a single

person or a body of magistrates, in which case the regime would be aristocratic of monarchic,

respectively (SC III.3.3-4); or it could delegate enforcement and adjudication to different

agencies which, jointly, constitute a “mixed government” (SC III.3.6). 83 Echoing

Montesquieu, Rousseau admits that “each one of them is the best in some cases, and the

worst in others” (SC III.3.8).84

Consider first non-democratic governments, whether aristocratic, monarchical, or

mixed. In all such cases, the government is a group agent with a corporate will of its own. In

Rousseau’s words, it is a “moral person” (SC III.1.17), “a new body in the State, distinct from

both the people and the Sovereign, and intermediate between them” (SC III.1.18). Hence “the

body of the Government… has to have a particular self… a force, a will of its own” (SC III.1.20)

different from, and potentially at odds with, the will of the sovereign people.85 But though

82 See Chapter 3.3-5.

83 Democracy, aristocracy, and monarchy as types of government (as in Rousseau) have nothing to do,
and are in principle consistent, with either democratic, aristocratic or monarchical sovereignty (as in Hobbes).
To say, for instance, that for Rousseau “The only free government is therefore a direct democracy in which the
citizens can actually be present in town-meeting” (Sabine 1961, p. 592) is ambiguous: Rousseau was a democrat
in the Hobbesian sense, but not a democrat by his own lights. The same holds of Rousseauian “mixed
government,” which has nothing to do with the mixed constitution he openly rejects (see Chapter 5.1).
84 See SC II.11.4 for Rousseau’s explicit endorsement of Montesquieu’s relativism about the “best” regime,
directly citing The Spirit of the Laws. Rousseau even agrees with Montesquieu’s emphasis on climate as a key
determinant of regime-type fit and of the likelihood that either freedom or despotism will flourish in a society:
“Freedom, not being a fruit for every Climate, is not within the reach of every people. The more one meditates
upon this principle established by Montesquieu, the more one senses its truth” (SC III.8.1; cf. also SC III.8.11).
85 Even a monarchical government is a moral person, as the monarch is presumably not the only
individual involved in the administration of the State: “Properly speaking, there is no simple Government. A
single Chief has to have subordinate magistrates; a popular Government has to have a Chief” (SC III.7.1). What

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its will is independent from the sovereign’s, the government’s very existence and

authoritative standing are not. “Government exists only by [virtue of] the Sovereign” (SC

III.1.19)—and this Rousseau means literally: “The instant the People is legitimately

assembled as a Sovereign body, all jurisdiction of the Government ceases, the executive

power is suspended, and the person of the last Citizen is as sacred and inviolable as that of

the first Magistrate, because where the Represented is, there no longer is a Representative”

(SC III.14.1). The government’s authority is an explicit, temporal, and revocable delegation

of the people’s original and inalienable executive power. Government “is absolutely nothing

but a commission, an office in which they, as mere officers of the Sovereign, exercise in its

name the power it has vested in them, and which it can limit, modify, and resume” (SC III.1.6).

The sovereign people giveth, and so it taketh away.86

is distinctive of monarchical government is that its corporate will simply equals the will of the monarch, to
whom all other magistrates are subordinate (i.e., a monarchical government has a dictatorial collective decision
procedure). As Rousseau puts it, “in this administration an individual represents a collective being” (SC III.6.2).
86 The sovereign/government relation is the only subject on which The Social Contract retracts a
politically significant claim made in the Second Discourse, where Rousseau had presented a cursory vision of
the Republic of the General Will quite similar to Pufendorf’s two-contracts account of incorporation (see pp.
235n15, 237n18): “I restrict myself in accordance with the common opinion to consider here the establishment
of the Body Politic as a true Contract between the People and the Chiefs it chooses for itself; a Contract by which
both Parties obligate themselves to observe the Laws stipulated in it and which form the bonds of their union”
(SD II.44).
As I explained in Chapter 5.1, the Rousseau of The Social Contract completely rejects the possibility
that a people could exist as a corporate agent independently of instituting a sovereign. More to the point, he
expressly recants the contractual model for the institution and delegation of authority to the government by
the sovereign. The “act by which Government is instituted” is not a contract at all. The act in question involves
(i) passing a law that defines the type of government to be adopted (SC III.17.1) and (ii) directly appointing the
magistrates who will discharge the offices of government (SC III.17.2-3). This is clearly a unilateral act of the
sovereign people, which does not thereby obligate itself to anything with respect to the government. Rousseau
then criticizes Pufendorf and Burlamanqui (Douglass 2013, 2015) on exactly this point: “Some have claimed
that this act of establishing Government was a contract between the People and the chiefs it gives itself…
Everyone will agree, I am sure, that this is an odd way of contracting!” (SC III.16.3); “There is only one contract
in the State, the contract of association; and it, by itself alone, excludes all others” (SC III.16.7); and “…the act
which institutes Government is not a contract but a law” (SC III.18.1). Amongst those who have so claimed we
must count Rousseau himself at the time of the Second Discourse.

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To the extent that government is virtually controlled by the sovereign assembly, and

provided that the magistrates’ actions are strict applications of the law expressing the

general will, there should be no problem of governmental (executive or judicial) domination.

In order to ensure popular control over government, “there must be fixed and periodic

assemblies which nothing can abolish or prorogue” (SC III.13.1). And in order to ensure that

executive acts will be strict and equitable applications of the law, the people must endeavor

to appoint virtuous magistrates. Hence, “social order” is best served by a “gradation” of the

magistrate’s will that is “the direct opposite” of the “natural order” (SC III.2.7): the perfect

magistrate will be, above all, a citizen who wills the general will, and only derivatively a

magistrate who acts on the government’s corporate will (ibid.; cf. also SC III.2.5). A wise

choice of virtuous magistrates coupled with frequent reviews of the government’s

performance by the sovereign people will suffice to keep the government’s “particular”

corporate will in check. Under such conditions, government does exactly what it is supposed

to do, namely, serve as an “intermediate body established between subjects and Sovereign”

(SC II.1.5) giving “motion” to the people’s laws (SC II.6.1).

The importance of having virtuous magistrates explains, in part, Rousseau’s

preference for an elective aristocracy (SC III.5.4). The “best and most natural order is to have

the wisest govern the multitude” (SC III.5.7) because the wisest are more likely to be

virtuous, to place their allegiance to the law above their corporate interests as members of

the government. Rousseau’s preference for aristocracy is reinforced by the observation that,

ceteris paribus, more magistrates are better than fewer because “the more numerous the

body of the magistrates, the more closely does the corporate will [of the Government]

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approach the general will” (SC III.2.13).87 In addition, an elective aristocracy can help

reinforce and sustain the Republic of the General Will’s commitment to equality because of

its meritocratic character. The more egalitarian the society, the more the wise and talented

have an opportunity to rise through the ranks.88

These and similar arguments lead Rousseau to prefer aristocracy over monarchy. 89

Although he has little to say about “mixed government,” it also seems that aristocracy is to

be preferred as compared with it. As a general rule, “In itself simple Government is best, just

because it is simple” (SC III.7.4). Rousseau’s sparse remarks on “mixed government” are

somewhat cryptic; they involve talk of “proportions” between the powers that comprise it

(SC III.7.4) and a vague distinction between “mixed” and “tempered” government (SC III.7.5).

But one thing is perfectly clear and worth stressing: even a mixed government is a moral

person, a group agent in its own right. This is a striking and seldom noticed fact about

Rousseau’s constitutional theory. Recall that, as I explained in Chapter 3.4, the Bodinian and

Hobbesian arguments against the mixed constitution rest on the mistaken belief that there

cannot be a sort of meta-incorporation that gives agential unity to the plurality of agencies

87 This thought is reminiscent of an important argument in the parliamentarian theory of representation

that was prominent during the English Civil War, to the effect that parliament was representative of the people
in that it constituted “a recognizable image or likeness of the populace as a whole” (Skinner 2005, p. 163).
88 Rousseau does not make this point explicitly, but I think it is congenial to his defense of aristocracy.
He does say that this type of regime requires “moderation among the rich and contentment among the poor”
so as not to degenerate into an oligarchy (SC III.5.9). If the elected aristocrats are indeed wise and virtuous,
they would surely support egalitarian policies to prevent any such degeneration from taking place.
89 One supporting consideration is that monarchy has a perverse psychological effect: it can easily turn a
virtuous person into a power-monger. “The best Kings want to be able to be wicked if they please, without
ceasing to be masters… Their personal interest is first of all that the People be weak, wretched, and never able
to resist him” (SC III.6.5). Things are only worse when monarchy is hereditary, as “Everything conspires to
deprive of justice and reason a man brought up to command others” (SC III.6.12). In a way, Emile’s education
is the polar opposite of the upbringing of a prince whose every whim and caprice is someone else’s command.
Rousseau credits Machiavelli with having shown how demoralizing such concentration of power can be. This
is the important republican lesson to be drawn from The Prince: “While pretending to teach lessons to Kings,
he taught great lessons to peoples. Machiavelli’s Prince is the book of republicans” (SC III.6.5).

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characteristic of the mixed constitution via decision rules and coordination mechanisms. Yet

this is exactly the possibility that Rousseau inadvertently allows in treating “mixed

government” as a moral person! The question, then, is why did he not consider the same

possibility in connection with sovereignty? If a “mixed government” still is a single moral

person, why could a “mixed constitution” not constitute a single sovereign too? Rousseau

seems to have rejected the classical republican idea of the mixed constitution somewhat

unreflectively, as part and parcel with the absolutism he adopted from Hobbes. But his own

idea of “mixed government” suggests the possibility of a mixed constitution that was

consistent with Bodinian absolutism.

The important point for our purposes is that irrespective of Rousseau’s meritocratic

predilection, there need not be domination with an aristocracy, a monarchy, or a mixed

government even though the government’s will is particular and distinct from that of the

sovereign people. Admittedly, the sovereign always takes a risk in delegating its executive

authority to an independent government, and Rousseau repeatedly acknowledges this.90 In

a sense, whenever the Republic of the General Will opts for a non-democratic government, it

sows the seed of its own destruction because “Just as the particular will incessantly acts

against the general will, so the Government makes a constant effort against Sovereignty” (SC

III.10.1).91 And as we saw in Chapter 4.4, the moment the government takes over or simply

90 If the people want to minimize this risk (as they surely would and should), then this is yet another
reason to avoid monarchy because “while there is no Government that is more vigorous [than monarchy], there
is none where the particular will has greater sway and more easily dominates the other wills” (SC III.6.4).
91 This may be one of the reasons why “The body politic, just like the body of a man, begins to die as soon
as it is born and carries within itself the causes of its destruction… Even the best constituted State will end, but
later than another” (SC III.11.2). Shklar emphasizes this idea to support her reading of The Social Contract as
the critical-utopian vision of a profoundly pessimistic Rousseau (1969, pp. 156-158, 161-163, 197-198). But
the text does not have to be read that way. Rousseau may just be making the very sensible observation that
human artifacts, including the Republic of the General Will, are inherently fragile and, like human beings
themselves, subject to inevitable transformation and decay. It seems more fruitful to approach Rousseau from

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ignores the sovereign’s legislative authority, everything falls apart; the government would

then become indistinguishable from a majoritarian faction dominating everyone else. This

is what Rousseau calls despotism: “I call Tyrant the usurper of the royal authority, and Despot

the usurper of the Sovereign power… Thus a Tyrant may not be a Despot, but a Despot is

always a Tyrant” (SC III.10.10). Despotism is Rousseau’s name for political domination, the

arch-enemy of civil liberty.

What, then, of democracy? Democracy is peculiar because one and the same moral

person is both the sovereign and the government. There is no institutional separation that

reflects the functional distinction between legislation and execution.92 Rousseau has several

pragmatic concerns about democratic government, notably that it would involve “that the

people remain constantly assembled to attend to public affairs” (SC III.4.3; cf. also SC IV.3.7).

Democratic government is therefore only feasible in “a very small State” (SC III.4.5; cf. also.

SC III.3.8). But there are deeper problems with direct popular government. The first is that

discharging executive functions denatures the legislative assembly, which will no longer

circumscribe its business to general legislation: “It is not good that he who makes the laws

execute them, nor that the body of the people turn its attention away from general

considerations, to devote it to particular object” (SC III.4.2; cf. also SC III.1). When legislation,

adjudication, and execution are in the hands of the same (moral) person, it will be much

this reasonably realistic perspective, which by no means forecloses the possibility—indeed, the duty—of
bringing about as decent a form of political society as (humanly) possible. Rousseau’s aspirations may just be
less grandiose than Hobbes’s, of whom it was perceptively said that “He aimed at devising a scheme of
government which was to be right for all times, peoples, and places… anywhere and everywhere” (Berns 1987
[1963], p. 413).
92 Consequently, the act of appointing the government is simpler in democracy than in the other cases
(see note p. 278n86): “It is a distinct advantage of Democratic Government that it can be established in fact by
a simple act of the general will” (SC III.17.7). The “advantage” probably lies in the fact that this is a more
efficient process and that the sovereign assembly can bypass any discussion about who shall be appointed to
the different magistracies.

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harder for citizens to guide their deliberations in light of considerations of the common good

as opposed to their particular advantage.

Quite aside from its corrupting effects, Rousseau seems to think that democracy is

inherently despotic: “If the Sovereign wants to govern, or the magistrate to give laws, or the

subjects refuse to obey, disorder replaces rule, force and will no longer act in concert, and

the dissolved State thus falls into despotism or anarchy” (SC III.1.9, emphasis added). The

same idea had already been advanced by Montesquieu, for whom the separation of powers

was constitutive of civil liberty. Montesquieu argued that when legislation and adjudication

fall in the same hands, the law as such ceases to matter; the state’s decisions will no longer

have to stick to the general rules, as they can be made on an ad hoc, case-by-case basis by a

lawmaker-cum-judge. The “law” will then turn out to be whatever the ruler wills it to be in

any given instance, depriving it of the generality and impersonality of which I have spoken

before. In fact, “In despotic states there is no law” because “the judge himself is the rule.”93

Indeed, democracy is not a free state “by [its] nature”94 because it enables the sovereign

people to interpret its own laws as it sees fit in the case at hand, there being no one with the

standing to challenge its potentially iniquitous applications of the law to particular cases.

The people would then be able to target specific citizens directly and maliciously with

absolute impunity. In a word, the people would become an arbitrary, dominating will in its

executive capacity. The structural possibility of undermining the rule of law, coupled with

its corrupting effects on the citizenry, virtually ensures that a democracy will degenerate into

93 Montesquieu 1989 [1748], Part I, Book 6, Chapter 3 (p. 76). The converse is also true: “The more the
government approaches a republic, the more the manner of judging becomes fixed” (ibid.).
94 Op. cit., Part II, Book 11, Ch. 4 (p. 155).

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a despotic, dominating regime.95 If this is right, then Rousseau’s opposition to democratic

governance was more principled than it might appear at first.96

The complete answer to the fundamental problem of freedom is, in sum, this: The

Republic of the General Will secures civil freedom for its citizens by protecting them from

personal domination without subjecting them to political domination. Equally shared

control over what the laws ought to be, the rule of law as such, and sovereign control of an

independent government jointly make Rousseau’s absolutism consistent with, indeed

constitutive of, civil freedom.97 “Thus there is no liberty without Laws, nor where someone

is above the Laws… A free people obeys, but it does not serve; it has leaders and not masters;

it obeys the Laws, but it obeys only the Laws and it is from the force of the Laws that it does

not obey men” (LFM, p. 279).

95 This may be the reason why, should the people choose to govern themselves directly, it is best that its
direct acts of administration be as few as possible (SC IV.3.3).
96 Rousseau explicitly vested the legislative sovereign with the seemingly executive prerogative of
granting pardons (SC II.5.5-7), but his reasoning is perfectly consistent with the interpretation I am offering. It
is clear that magistrates cannot have that authority, for it can only be had by “the one which is above judge and
law” (SC II.5.7). Magistrates cannot circumvent the law by pardoning someone because their express
commission is to apply the law as faithfully and equitably as possible. (Bodin saw this clearly: “the right of
pardon cannot be given away without giving up the crown itself,” 1991 [1576], p. 75.) Plus, the sovereign demos
cannot use the power to pardon to maliciously target anyone because a pardon never harms its beneficiary.
Rousseau rejects the possibility that the assembly may sentence an individual citizen for the opposite
reason (SC II.5.5). This refusal suggests that he agreed somewhat with Montesquieu’s requirement of
independent adjudication, even though he (like Locke) subsumed it under the executive power. For
Montesquieu, “Nor is there liberty if the power of judging is not separate from the legislative power and from
the executive power” (1989 [1748], Part II, Book 11, Ch. 6 [p. 157]).
97 As Pettit (2013, 2016) has argued, Rousseau rejects the classical republican commitment to the mixed
constitution. I have already mentioned the fact that Rousseau unwittingly allows for the kind of meta-
incorporation that Bodin and Hobbes failed to envision, which suggests that he might have rejected the mixed
constitution somewhat unreflectively. If my understanding of his concerns with democracy and preference for
aristocracy are correct, then in a sense he does favor the sort of de-centralization of political power that
motivates allegiance to the mixed constitution. It is noteworthy, for instance, that when Rousseau criticizes the
English constitution hailed by Montesquieu as a republican model for modern times, his attack is directed at
the representation of the people’s inalienable legislative authority, not at the fact that it exemplifies the
separation of powers: “The English people thinks it is free, it is greatly mistaken, it is free only during the
election of Members of Parliament; as soon as they are elected, it is enslaved, it is nothing.” (SC III.15.5). It is
also telling that the Roman constitution, the traditional paradigm of a mixed constitution, is praised by
Rousseau as one in which “the Roman People was genuinely Sovereign both by right and in fact” (SC IV.4.21).

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CHAPTER 6. THEORETICAL PUZZLES, PRACTICAL BARRIERS

As I have shown in Chapter 5, the Republic of the General Will promises a great deal.

It is supposed to liberate us from interpersonal domination without imposing a political

dominus; it makes us free in the civil sense while facilitating the attainment of moral freedom;

and it provides an institutionalized forum for our mutual recognition as equals qua co-

legislating citizens. I have relied throughout on the republican interpretation outlined in

Chapter 4, according to which political freedom is about not being subject to the arbitrary

will of another. This is not to say that the social autonomy interpretation, with its emphasis

of obeying one’s own will only, lacks any textual support. There are indeed several passages

in Rousseau that seem to confirm the social autonomy reading. It is to those passages that I

turn in section 6.1, in an attempt to make sense of them consistently with a reading of The

Social Contract that privileges the idea of civil freedom.

Section 6.2 deals with a specific and serious challenge to Rousseau’s Republic of the

General Will. As we saw in Chapter 5, one of the reasons why the Republic is not arbitrary

(and thus not dominating) is that citizens have an equal share of control over the laws. This

equality of control vanishes the moment a faction (or a coalition of factions) becomes

majoritarian; in that case, the will of the people will be determined by the particular

corporate will of the faction(s). For the citizen who does not belong to the majority faction,

the will of the people will effectively constitute an alien and arbitrary, hence dominating,

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will. Philip Pettit argues that the problem of factionalization creates a dilemma for Rousseau,

but I believe there are ways in which the Republic of the General Will can lessen the intensity

of this problem, if not fully resolve it. This key is to create institutions that can credibly

embody an independent yet public judgment on the integrity of the legislative assembly.

In the end, Rousseau’s Republic of the General Will is set up in such a way that its

legitimate power will almost invariably tend to be exercised justly. The objective dimension

of the general will virtually ensures that the laws will always be just under some reasonable

interpretation of the common good. Thus, Rousseau rejoins what Hobbes had separated: in

the Republic of the General Will, the right to perform as a state goes hand in hand with the

quality of the state’s performance. The difficulty is that the Republic of the General Will

demands too much of modern citizens—more, in fact, than can be sensibly expected of them.

It is a compelling ideal, but one that large, modern states are very unlikely to be able to

realize.

6.1 Forced to the Free

On the republican interpretation of Rousseau, the constitutive relation between civil

freedom and the Republic of the General Will vindicates the promise that the contractors

stand to gain by renouncing their “natural freedom” and forming a political society with

others. The argument is strong in its own terms and, as I explained in chapter 4.3, it requires

less than the social autonomy reading’s emphasis on a political analogue of “moral freedom”

or self-mastery. However, there are places in The Social Contract where Rousseau does

deploy the kind of language that motivates the social autonomy interpretation. Even in the

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passage that introduces civil freedom, he claims that the Republic of the General Will must

be credited with making moral freedom possible (SC I.8.3). In this section, I explain how the

republican interpretation can accommodate the key ideas in The Social Contract that seem

to support the social autonomy interpretation.

There is a subtle difference in the way Rousseau describes the relation between the

Republic of the General Will and civil freedom, on the one hand, and moral freedom, on the

other. When the contractors consent to their political incorporation, they immediately “gain”

civil freedom (SC I.8.2); this makes sense because the institutional features of the Republic

of the General Will, especially the democratically controlled rule of law, are constitutive of

interpersonal as well as political non-domination. But nothing quite as strong is said about

moral freedom. Rousseau does not say that it is always immediately achieved by the “civil

state,” though it is to the latter’s “credit” (SC I.8.3) that citizens can attain it. 1 This way of

phrasing the moral freedom-civil state relation seems to me consistent with a distinction I

hinted at in section 4.3, between the Republic of the General Will as I have spelled it out and

the perfect Republic of the General Will or Rousseau’s maximalist ideal of freedom. The

thought is that a legitimate political association must always secure civil freedom, thought it

does not necessary ensure that citizens will be morally free; and yet, the association is all the

better as it fully realizes its citizen’s moral freedom as well. As we have seen, it is not

necessary for citizens to regard obedience to the civil laws as obedience “to the law one has

prescribed to oneself” (SC I.8.3) for them not to be dominated. To the extent that they do see

the laws that way, the Republic of the General Will will be more stable, magistrates will be

more virtuous, citizens will be better judges of what the (objective concept of the) common

1 On this point, see the long passage from Emile cited in Chapter 4.3,

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good requires, and civilized individuals will be more psychologically harmonious, less

alienated from self and others. The full attainment of moral freedom is a maximalist ideal

though not a necessary condition of legitimacy.2

Rousseau’s more antiquated institutional proposals—like civil religion (SC IV.8.31-

32), the office of the censor (SC IV.7.1, 5), and the founding lawgiver (SC II.7.3-4, 9-11)—are

intended to approximate this maximalist ideal of full autonomy by fostering and promoting

civic virtue, or the disposition to subsume one’s “particular will” to the (psychological)

general will. They add nothing to the enjoyment of civil freedom as such except contribute

to the stability of the Republic that makes it possible, and Rousseau nowhere indicates that

they are normatively on a par with the defining institutions of the legitimate state, namely,

popular sovereignty, the rule of law, and the delegation of executive authority to an

independent government. This is not to concede that the account of legitimacy premised on

civil freedom is unconcerned with stability. We can agree that full moral freedom would

make the Republic of the General maximally stable, as everything it does would be seen by

all as being identical with what each individually wills: everyone could say, “the laws are my

will.” But one can easily imagine a citizenry that fully appreciates the value of its civil

freedom and is therefore motivated to uphold and support the Republic of the General Will

without anyone coming to see the laws as “my own will” (the laws would be seen by each as

the will of the people omnes universi, not omnes singuli). The legitimate Rousseauian state

2 Contrast this, for instance, with Neuhouser’s definition of “full political freedom”: “(i) the laws that
govern citizens must be objectively liberating… and (ii) citizens must also stand in the appropriate subjective
relation to the laws that govern them” (1996, p. 395), where the appropriate “subjective relation” consists in
“[i]dentifying the general will with the true will of each individual” (p. 391, emphasis added). For an even more
maximalist reading of Rousseau, according to which legitimacy is coterminous with individual happiness and
fulfilment, see Hasan 2016.

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can secure the sociological conditions of its own stability without satisfying the demands of

“social autonomy.”

This is not to deny that citizens do enjoy a modicum of moral autonomy in their

relation to the (short-of-perfect) Republic of the General Will. When the contractor consents

to the constrained majoritarian procedure that issues in actual legislation, provided there

are no factions affecting the assembly’s deliberations—and I will have more to say about this

in the following section—, there is a sense in which she can rightly (albeit indirectly) see the

laws as willed by her. She agreed to the procedure; she agreed to take her fellow-citizens as

equally competent judges of what the common good requires; and they voted on their

individual opinions in a bona fide effort to track the common good as they each understand

it. Because she agreed to these rules, the outcome of the process bears the mark of her

authorization. We might say that the democratically controlled rule of law accords with her

will. But for her to will the rule of law as such, even to endorse the value of the laws as a

whole, is not the same as taking each law to be “her own will.” She may will the rule of law,

she may even agree with most of the laws, and yet with good reason not regard herself as

obeying her own will only in obeying the laws.3 By no stretch of the imagination can our

contractor be said to obey only her own will in obeying the law she has authorized by

consenting to the democratic legislative procedure. This is, in my opinion, the chief defect of

the social autonomy interpretation: that it sets itself an impossible justificatory standard. It

3 It is tempting to draw two unwarranted inferences in order to validate the social autonomy
interpretation. The first is to conclude that a citizen wills every law in willing the rule of law as such; the second
is to conclude that a citizen is obeying her own will only in not obeying an alien, dominating will. Neither move
is correct. I can be non-dominated without obeying my will only (see Chapter 5.3), and I can will the rule of law
without in any way committing myself to regarding each law as an expression of my will.

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is bound to push Rousseau to that striking, almost absurd Hegelian assertion that the

convicted criminal wills his own punishment and is in fact “honored” by it.4

We are left with the challenge of making sense of two oft-cited passaged in The Social

Contract that seem to commit Rousseau to nothing short of the maximalist ideal of the perfect

Republic of the General Will characterized by a fully virtuous, fully autonomous citizenry.

The first passage is this: “What, then, is, properly, an act of sovereignty? It is not a convention

of the superior with the inferior, but a convention of the body with each of its members… So

long as subjects are subjected only to conventions such as these, they obey no one, but only

their own will” (SC II.4.8). I have defended (in section 5.3) the plausibility of Rousseau’s

distinction between a superior-inferior (or master-servant) relation, on the one hand, and

the relation that obtains between a citizen-subject and the Republic of the General Will, on

the other hand. But here Rousseau seems to say that the non-dominating character of the

latter goes hand in hand with the citizens obeying “only their own will” when they obey the

limitations imposed by the law. There are two ways of interpreting this phrase. First,

obeying “only their own will” may straightforwardly mean moral freedom. But this, as I have

suggested, is extremely implausible, except perhaps when the individual citizen agrees with

the majority whose opinion is now expressed in the law. If so, then the most one can say is

4 “The injury which is inflicted on the criminal is not only just in itself (and since it is just, it is at the
same time his will as it is in itself, an existence of his freedom, his right); it is also a right for the criminal himself,
that is, a right posited in his existent will, in his action” (Hegel 1991 [1821], §100); “In so far as the punishment
which this entails is seen as embodying the criminal’s own right, the criminal is honored as a rational being.”
(Op. Cit., §100R).
Once we drop the claim that legitimacy involves full moral freedom, the recurrent debate about how
psychologically repressed (or “communitarian”) the Rousseauian citizen must be for there to be a Republic of
the General Will loses much of its relevance. This debate is central to Shklar’s dilemma between Man and
Citizen as mutually exclusive utopias (1969, pp. 17-18, 129-131); to Cohen’s argument for the “priority” of the
psychological general will in Rousseauian citizens (2010, pp. 34-40); to Bloom’s contention that the Rousseuian
citizen must renounce all private, individual volition (1987 [1963], p. 561); and to openly communitarian
readings of Rousseau such as Yonah’s patriotism-centered account (1997, p. 295, 313-314, 321).

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that there will always be a majority of citizens for whom any given law is exactly what they

wanted it to be; the majority coalition is therefore morally free with respect to the law it

supported. But we can only say that every citizen is fully morally free if and only if each and

every law was unanimously approved by the popular assembly—which is virtually

impossible. Rousseau likes the ideal of unanimity (SC IV.2.1), but he never says that it is

necessary for the legitimacy of the Republic of the General Will. It is far more realistic to

assume that any given law will be passed by a different majoritarian coalition (if it was

always the same, that would be a strong sign of factionalization); and so every citizen would

be morally free only with respect to those laws that were passed by a majoritarian coalition

to which she happened to belonged. So Rousseau cannot possibly mean that in the Republic

of the General Will all of the citizens obey “only their own will” in obeying all the laws passed

by the popular assembly. (I will have more to say about the relation between a citizen in the

minority and the laws passed in spite of her vote.)

It makes far better sense to read Rousseau as indicating that every law in the Republic

of the General Will has been authorized by every citizen, as I suggested a few paragraphs

above. To borrow Hobbes’s terminology, we might say that every law is enacted in the name

of the entire people, that is, on behalf of each and every citizen, regardless of who voted for

or against it. This is how the Republic of the General Will satisfies the demand that “The

people subject to the laws ought to be their author” (SC II.6.10). We can say as much because

of the unanimous agreement on constrained majority rule as the appropriate legislative

decision-making procedure. We unanimously create the Republic of the General Will, but we

agree that in order for it to act and do its job, decisions must be made in our name as a people

without granting every citizen the veto power entailed by unanimity rule. As Rousseau puts

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it, “By the social compact we have given the body politic existence and life: the task now is to

give it motion and will by legislation” (SC II.6.1). It is only in this sense of indirect

authorization that the citizen who joins the Republic of the General Will “nevertheless obeys

only himself” (SC I.6.4), that is, only obeys the outcomes of a procedure she has directly

consented to, and in which she has as much control over the result as every other individual

citizen.5 Every citizen-subject obeys the outcome of a procedural specification of what the

common good requires that has been authorized by him or her, but the outcome of the

procedure—the actual law adopted by the assembly—need not be, and often will not be, the

individual citizen’s own will.

This analysis also explains the meaning of a much-contested passage in

Rousseau concerning the justifiability of coercing a citizen who was not part of the majority

coalition that enacted a given law. Because of its great importance, it is worth quoting at

length:

Except for this primitive contract, the vote of the majority always obligates all
the rest; this is a consequence of the contract itself. Yet the question is raised how a
man can be both free and forced to conform to wills which are not his own. How are
the opponents both free and subject to laws to which they have not consented?
I answer that this question is badly framed. The Citizen consents to all the
laws, even to those passed in spite of him, and even to those that punish him when he
dares violate any one of them… When a law is proposed in the People’s assembly,
what they are being asked is not exactly whether they approve the proposal or reject
it, but whether it does or does not conform to the general will, which is theirs;
everyone states his opinion about this by casting his ballot, and the tally of votes
yields the declaration of the general will. Therefore when the opinion contrary to my
own prevails, it proves nothing more than that I made a mistake and that what I took
to be the general will was not. If my particular opinion had prevailed, I would have

5 That passage continues to say that the contractors “remain as free as before” when they become
citizens (ibid.). Here Rousseau is exploiting the ambiguity of the term “freedom”: the contractors lose their
“natural” freedom, but they acquire the “civil” freedom that cannot be had outside the rule of law made possible
by the Republic of the General Will. Contrast this with Rawls’s gloss, representative of the social autonomy
interpretation: “But of course Rousseau misspeaks in saying that we remain as free as before. Actually, we are
no longer naturally free at all. We are morally free, but not as free as before” (2007 [1971], p. 244).

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done something other than what I had willed, and it is then that I would not have been
free.
This presupposes, it is true, that all the characteristics of the general will are
still in the majority… (SC IV.2.7-9, emphases added).

In this very rich and complex passage, Rousseau implicitly relies on the distinct

psychological, objective, and procedural notions of the general will I explained in section 5.2.

When he distinguishes “accepting” or “rejecting” a proposal from deciding whether it

“conforms” to the general will, he has the objective concept of the common good in mind, a

concept we can have intelligible opinions (and disagreements!) about. Now this objective

concept is “theirs” in the psychological sense, meaning that citizens have epistemic access to

and can be motivated by it. And, finally, when all ballots are cast, the procedural specification

of the conception of the general will to be enshrined as law is thereby “declared.” More to

the point, however, Rousseau is distinguishing two ways in which we can view the situation

of a citizen who finds himself in the minority when a law is “passed in spite of him.” The

objection Rousseau brings to the table describes the case as being forced to conform to the

wills of other people, that is, of the citizens in the majority coalition. But he suggests that the

real question is why this person is forced to conform to the opinion of the individual

members of the majority coalition about the best interpretation of the objective concept of

the general will that they are all presumably aiming at in good faith. As Douglass explains,

“Rousseau did not argue that citizens are under the obligation to obey the will of the majority

(which would be akin to the will of all), but only the vote of the majority as to what the general

will entails… When in the minority, then, it is not that a will contrary to one’s own has

prevailed, but only that an opinion contrary to one’s own has prevailed, regarding what the

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general will entails.”6 This distinction between the will of the majority and the opinion of the

individual members of the majority coalition is just another way of explaining the non-

factionalization constraint—hence Rousseau’s caveat: “This presupposes, it is true, that all

the characteristics of the general will are still in the majority” (SC IV.2.9). When the majority

is not just an ad hoc coalition of independent opinions that happen to converge, but rather

the corporate will of a single faction, the citizen in the minority cannot be told that he is just

deferring to the individual opinions of the majority of his fellow citizens. He would be

actually asked to conform to the single, unitary will of a corporate agent which, by definition,

seeks to advance its own “particular” will, instead of aiming at the objective concept of the

common good in good faith.

If (i) I am sincerely committed to aiming at the objective concept of the general will,

(ii) if I trust that every other fellow citizen is so committed as well, and (iii) if I have good

reason to believe that we are equally competent judges of what the (objective) general will

requires, then there is a plausible sense in which I can be defeated by the vote of the majority

yet still concluded that my intention was served by the outcome of the vote. If I know

Condorcet’s theorem and there are no factions in the assembly, I should indeed believe that

the majority is more likely to have gotten the general will right. If getting it right is what I

intended to do in the first place, then my will is better served by conforming to the opinion

of the majority than by trying to impose my own.7 Rousseau exaggerates in saying that I

“would not have been free” if I managed to impose my opinion against the judgement of the

6 Douglass 2013, p. 742. Cf. also Douglass 2016, pp. 131-133.

7 Notice that this reading has the advantage of avoiding suspicious notions like “true” or “real” selves
(Berlin 2002 [1952], pp. 44-46), which continue to be invoked in recent scholarship about Rousseau (e.g.,
Sreenivasan’s talk of “true wants” and “true self,” 2000, pp. 550-551, 570-571). Such approach is difficult to
resist when one fails to distinguish the psychological and objective notions of the general will.

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majority, but I can intelligibly be said to fail to get what I want by insisting on my own opinion

as opposed to that of the majority as the best possible procedural specification of what the

common good requires. This is not to say that my actual will is constituted by the decision

of the majority, and so I still need not regard obedience to the laws I vote against as obeying

“my own will only.” But nor should I regard them as obeying the arbitrary will of another

because the majority that defeated me was playing the same game I was in good fatih—vis.,

that of hitting on the best possible interpretation of what the common good requires. My

position is akin to that of a judge who dissents from his colleagues on a panel: I can continue

to disagree on the merits of the decision, but I have every reason to uphold the integrity and

validity of the outcome. If I am a magistrate of the Republic of the General Will, I may even

be the one tasked with enforcing the law I voted against. I can do so in good conscience, and

without cognitive dissonance, because I authorized the procedure from the start and can see

how the majority was trying to get it right, just as I was.8

The model of authorization explains why citizens are not dominated by a non-

factionalized assembly even when they are defeated by the majority. It even explains the

fact that the criminal consents, indirectly, to the law that convicts him. But we can and are

well advised to leave it at that and void forcing the equation between the will of the sovereign

people and the citizen’s own individual will. Rousseau’s criminal consented indirectly to the

criminal law on which he is convicted, but we must not go as far as claiming that he literally

wills his own punishment.

8 “The judgement of whether or not a democratic majority has erred… must be left to each individual
citizen” (Stilz 2009, p. 83). Indeed it must, and that is as it should be—provided “erred” means “erred in good
faith” and not due to factionalization.

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I now turn to the last, most perplexing statement that any interpretation of Rousseau

needs to do its best to explain: “for the social compact not to be an empty formula, it tacitly

includes the following engagement which alone can give force to the rest, that whoever

refuses to obey the general will shall be constrained to do so by the entire body: which means

nothing other than that he shall be forced to be free” (SC I.7.8, emphasis added). How is this

not the kind of Hegelian paradox I criticized before? For some, it is merely “a euphemism for

making [the citizen] blindly obedient to the mass or the strongest party;”9 others think it can

only mean that when my physical, lowly self is coerced, my deeper, “true” self is freed;10 still

others insist on taking this remark as a simple entailment of the achievement of complete

moral freedom.11

I think there is a simpler, more sensible way to make sense of what Rousseau is trying

to say. In section 5.3 I argued that the rule of law is constitutive of civil freedom, and that

democratic government is especially dangerous because it undermines fair and equitable

adjudication, that is, it can undo the impersonality that in part makes the law non-

dominating. Now obviously the rule of law is worthless if the “full common force” (SC I.6.4)

is not used to physically coerce violators of the law. In that case, the Republic of the General

Will would fail to protect the sphere of action that each citizen is assured to have without

being subject to the will of others—in short, it would fail to protect the citizen’s individual

rights. The Republic of the General Will must therefore have power sufficient to stand by the

laws, and it is only natural to expect that it will have to deploy such power because any given

person may try to breach the law, i.e., may try to violate other people’s rights. This is a

9 Sabine 1961, p. 591.

10 Berlin 2002 [1952], pp. 37, 44.
11 Rawls 2007 [1971], p. 243.

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possibility inherent in the psychological tension between self-interest and the interest in the

common good: “Indeed each individual may, as a man, have a particular will contrary to or

different from the general will he has as a Citizen” (SC I.7.7). On those assumptions, every

citizen stands to benefit from the equitable and impartial enforcement of the law—and so

even I benefit, at some level, from being coerced whenever I breach it. Just as my disregard

for the law was met with the Republic’s “common force,” so I can continue to expect that any

other person’s attempt to violate my rights will encounter the same resistance from the state.

Nobody’ rights can be violated with impunity—not even the criminal’s. In being coerced

lawfully and fairly, the state is doing what I hoped it would do from the start: uphold the rule

of law for the benefit of us all. I surely do not will my punishment, but to the extent that I

will to remain reliably free from domination, I cannot deny that I am being punished with

good reason. Not even punishment amounts to domination in the Republic of the General

Will, for it is not arbitrary at all.12 Montesquieu made the point better than Rousseau himself:

“What makes the death of a criminal lawful is that the law punishing him was made in his

favor. A murderer, for example, has enjoyed the law that condemns him; it has preserved his

life at every moment; therefore, he cannot make a claim against it. It is not the same with the

slave; the law of slavery has never been useful to him; it is against him in every case.”13 One

can see why Rousseau approvingly records that “In Genoa the word Libertas can be read on

the front of prisons and on the chains of galley-slaves” (SC IV.2.6n).

12 In Pettit’s terms, the Republic of the General Will passes the “eyeball test” even with respect to the
criminal, who remains “in a position to treat unwelcome public decisions as tough luck rather than the work of
a malign will” (2016, p. 171n10). If I am punished, it is because I was unlucky enough to get caught. The
conviction itself, and the sentence, are not acts of a “malign will” at all; they are simply the equitable (and
predictable) application of the laws which I have indirectly authorized by consenting to the terms of the social
contract.
13 Montesquieu 1989 [1748], Part III, Book 15, Ch. 2 (p. 248).

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6.2 Pettit’s Dilemma

Philip Pettit has recently raised a novel objection against Rousseau’s Republic of the

General Will. According to Pettit, Rousseau’s theory leads to the following dilemma: “Put

aside the possibility that the sovereign assembly that rules in a community is in error about

the common interest; let fallibility not be an issue. The question… is whether people are

entitled to reject subordination to their sovereign assembly, if they judge that the assembly

is factionalized and that it no longer identifies or implements the general will. Rousseau’s

answer to this question must be a ‘yes’ or a ‘no’, but neither answer is appealing.”14 If

Rousseau’s answer is yes, then that “would make political stability unattainable,”15 as the

individual citizen could unilaterally declare that the state was dominating with respect to

him or her individually and thus illegitimate as far he or she was concerned. Any citizen

could then unilaterally release him- or herself from the bonds of political obligation. If

Rousseau’s answer is no, then “his philosophy may have to condone the coercive

subordination of some citizens to a form of rule in which others are really the masters;” the

Republic of the General Will “would hold out the spectre of permitting despotism.”16 Pettit

believes that Rousseau would most likely take the latter view because the “total alienation”

of the social compact includes alienating one’s private judgment on matters of public

interest.17

14 Pettit 2016, p. 184.

15 Op. cit., p 185.
16 Ibid.
17 Op. cit., p. 186.

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It seems to me that there may be a way to solve this dilemma, or at least to lessen its

intensity. The key to this possibility is to insist on the difference between being dominated

and believing that one is being dominated. Indeed, one of the appeals of the republican

notion of civil freedom is that it has an objective, matter-of-fact core. Whether someone has

or lacks a sphere of action insulated from other people’s arbitrary power of interference is

an observable social fact, not a function of anyone’s state of mind. This is precisely why non-

domination in a way demands more than non-interference. A master may have no desire to

interfere with the servant, but that does not detract from the latter’s being dominated;

similarly, a Stoic slave may be content with his lot, but that does not erase the fact of his

subjection.18

If a citizen is in fact dominated by a majoritarian faction, then her beliefs are

irrelevant to establishing the illegitimacy of the Republic of the General Will. But if the citizen

mistakenly believes that there is a dominating majoritarian faction, there is every reason for

Rousseau to deny that that particular person can refuse to obey the sovereign people.

Political society would be impossible if legitimacy was held hostage to people’s beliefs. In

that case, the citizen would also be mistaken in believing that the sovereign’s assertion of

authority in the face of her challenge was a form of despotism. She is certainly entitled to

her opinion, but it would be a mistaken one at any rate. From that false belief it cannot

follow—certainly not on the republican as opposed to social autonomy approach—that the

Republic of the General Will is therefore despotic.

This line of response depends on there being a factual basis on which to resolve

allegations of factionalization, as I believe there can be. Consider, by way of analogy, the

18 This last point was very clearly seen by Rousseau. See p. 162n2.

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evidentiary standards of anti-trust legislation, which require demonstrating the existence of

illegal agreements among competitors in an open market that explain their coordinated

behavior. Why should not the Republic of the General Will similarly keep an eye on signs of

factionalization? That could very well be part of the government’s function, aimed at

protecting the integrity of the sovereign assembly by the latter’s express commission.

Rousseau should have no reason to oppose such an institutional complement to his proposed

architecture of the Republic of the General Will. In fact, he invites this kind of proposal when

he gives the magistrates the prerogative to convene the popular assembly outside of its pre-

ordained calendar (SC III.13.2). It may even be part of the censor’s duty “in preserving

morals” (SC IV.7.5) to detect and report any sign of factionalization. Because factionalization

poses such a serious threat to the legitimacy of the Republic of the General Will, public

evidentiary standards for judgments of possible factionalization could conceivably be part

of the social contract or at any rate of the most basic constitutional laws.

An unfounded belief that the assembly is factionalized cannot by itself make the

Republic of the General Will illegitimate, not even with respect to the particular person who

holds that belief. And there are numerous institutional solutions that can provide a public

evidentiary standard for such judgments, making it less likely—and less reasonable—for

anyone to call into question the independence and good faith of her fellow citizens when they

vote in the assembly of the whole. A censor modelled after contemporary electoral

authorities (independent bodies tasked with certifying the integrity of elections) could go a

long way towards grounding citizens’ trust in the legislative assembly.

Of course, at the limit, the censor could also be part of a faction, and perhaps the

individual citizen has very good reason to regard the assembly as being facitonalized after

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all. But this sort of objection—quis custodiet ipsos custodes?—can be raised against any

institutional solution to problems of corruption and abuse. There is nothing peculiarly

defective about the Republic of the General Will in this regard. In such a political society, as

in every other, there are no fail-safe institutional guarantees that everything will go

according to plan.

6.3 Just Legitimacy

The fundamental achievement of the Republic of the General Will is that interpersonal

relations of domination are eradicated without recourse to the despotism of political

domination. In consenting to the social contract, “each, by giving himself to all, gives himself

to no one” (SC I.6.8). This is possible, above all, by virtue of the rule of law, an intentional

but non-arbitrary source of interference for citizens—a source of interference that will only

actually interfere with those who breach the law, thereby ensuring that they can all equally

enjoy their civil freedom. When Wolin says, somewhat dismissively, that “Rousseau’s

argument… foreshadowed one of modernity’s basic articles of faith: that to be dependent on

some impersonal force—call it “history,” “necessity,” “World-Spirit,” “laws of nature,” or

“society”—is to commune with reality and to experience “true” freedom,”19 he is not entirely

off the mark. Yes, the rule of law is an impersonal force, but it is still intentional and

controlled by all citizens on an egalitarian basis. It is, in that sense, radically different from

the laws of nature albeit equally non-dominating.20

19 Wolin 2002, p. 334.

20 A similar point could be made about Douglass suggestive claim that “Rousseau sought to provide a
republican account of political law that was also in accordance with nature as a regulative normative standard”
(2015, p. 141). Douglass does not emphasize the intentional character of law, even though civil law does

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In Part I, I argued that Hobbes’s theory of the state involves two independently

necessary and jointly sufficient conditions for legitimacy understood as the right to perform

as a state. Any agency that purports to have the status of sovereign must (i) effectively solve

the problems of the state of nature and (ii) be authorized by the unanimous consent of the

subjects. Rousseau’s Republic of the General Will is more demanding than that, though in a

way conceptually simpler. An agency has the right to perform as a state just in case it can

guarantee civil freedom for its citizens without being itself a dominating will. The guarantee

of civil freedom presupposes that the state must have enough power to uphold the laws, and

the non-despotism condition involves (i) the unanimous consent of the citizens to the social

contract and (ii) that the will of the sovereign people be exercised in a specific way. The will

of the people must be determined democratically, trough constrained majority rule, and its

members must vote on their considered (individual and independent) opinion as to the best

conception of the common good to be advanced through the laws.21

Even on this republican approach, which demands less of the legitimate state than the

social autonomy interpretation, Rousseau establishes a very tight connection between the

Republic of the General Will’s right to perform as a state and the quality of its performance.

Whereas Hobbes insisted that these were distinct evaluative dimensions, and that the quality

of the sovereign’s performance was a question of non-justiciable “equity,” Rousseau’s theory

resemble natural law in being non-arbitrary, and in any event he takes the analogy with nature in a very
different direction, using it to argue that Rousseau was a moral realist (pp.139, 143-144).
21 Pettit argues that “while Rousseau stressed the value of self-legislation in the assembly, he took this to
be of heuristic or epistemic rather than constitutive significance; it was a sign—although, as we shall see, a
fallible sign—of the presence of the general will” (173n21). It is true that democratic law-making is a heuristic
or, as I have called it, a procedural approximation to the objective concept of the general will. But it seems to
me that Rousseau also regards it as an essential guarantee of civil freedom: self-legislation tightens the
connection between the act of consent to the social contract and the consequent authorization of the majority’s
decisions. Pettit has elsewhere argued that direct, democratic legislation is not necessary for the state to be
non-dominating (2012, esp. chapters 4 and 5), but Rousseau seems to have thought otherwise.

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of the general will makes them inseparable. The legitimate state must always conduct its

affairs by an acceptable, procedurally specified conception of the objective common good;

and that ensures that the laws will be (substantively) just. Although justice does not entail

legitimacy (a benevolent despot may in fact be quite good at tracking the common good),

legitimacy certainly entails justice.

This close connection between the right to perform as a state and the quality of the

state’s performance captures best the idealism in Rousseau. Even if we abandon the

unreasonable expectation that the Republic of the General Will will make us all totally free,

in both the civil and moral sense, it nevertheless does as much as anyone could hope for a

human artifice. The real problem with Rousseau’s vision is just how impracticable it is for

modern, civilized individuals, of whom it demands too much. It asks us to make use of “the

liberty of the ancients,” “exercising collectively, but directly, several parts of the complete

sovereignty,” in order to enjoy the “liberty of the moderns,” “the right to be subjected only to

the laws, and to be neither arrested, detained, put to death or maltreated in any way by the

arbitrary will of one or more individuals.” 22 It is unrealistic to expect that the modern citizen

will be willing to make the public business so very much, and so very often, his own, as the

Republic of the General Will demands. Even Rousseau conceded that his Republic of the

General Will could only work as he imagined it should in places like Corsica or his native

Geneva (SC II.10.6). Only in such small, relatively homogeneous societies could one hope to

revive the citizenry’s readiness to become directly involved in the res publica on a regular

22 Constant 1988 [1819], pp. 310-311.

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basis. “Remember that the Romans went from the plow to the consulate” (E V, p. 474), but

present-day citizens are no ancient Romans.23

23 I think Richard Tuck (2015) underestimates the level of popular political involvement that Rousseau
envisions for the Republic of the General Will. Tuck’s argument that the Rousseauian people can be a “sleeping
sovereign” makes it seem as if Rousseau’s vision is much easier to materialize than it in fact is.

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PART III. KANT

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CHAPTER 7. MORAL FOUNDATIONS

7.1 Tertium Quid

Moses Medelssohn famously christened his eminent contemporary der Alles

zermalmende, the “all-destroying,” Kant.1 Mendelssohn’s bitterness was understandable, as

it was Kant who laid siege to the dominant Leibniz-Wolffian dogmatic metaphysics that

Meldelssohn so vigorously defended throughout his academic life. 2 But in the “battlefield”

of metaphysics (CPR Avii/Bxv), Kant actually sought to mediate rather than destroy—to

mediate, that is, between Newtonian science’s demands for sound metaphysical foundations

and Hume’s seemingly irrefutable skepticism. Science could not command our rational

assent unless relations of causality were shown to be genuine and epistemically accessible

as more than the observed “frequent and constant conjunction of objects.”3 This ambitious

task could only be discharged by abandoning the rationalist realism that Hume’s empiricism

had so persuasively undermined. Kant’s solution—the doctrine of Transcendental

Idealism—involved, yes, abandoning the dogmatism of Wolff and Mendelssohn, but only

because this was the price to be paid in order to vindicate the epistemic validity of judgments

of natural causality. Kant was to Newton and Hume what pure reason is to the subject and

1 Mendelssohn 1786, p. b2.

2 On Kant’s historically successful challenge to the dogmatic tradition of German metaphysics, see
Korsgaard 1996 [1989], pp. 5-8, and Gardner 1999, pp. 4-9.
3 Hume 1978 [1739], Book I, Part III, §12 (p. 139).

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predicate of a synthetic a priori judgment: the “third thing,” the “medium,” which alone

makes their “synthesis” possible (CPR A155/B194).

In Part III I propose that Kant’s political philosophy is also a kind of mediation

between Hobbes’s and Rousseau’s views about legitimacy and justice. As I argued in Chapter

3.7, Hobbesian legitimacy involves two independently necessary and jointly sufficient

conditions: authorization through consent and effective protection. Though not required for

a state to have the right to perform as such, Hobbes nevertheless insists that sovereigns have

(non-justiciable) duties to exercise their power in a benevolent manner, in accordance with

norms of “equity.” By contrast, Rousseau builds the requirements of justice, as modeled after

his complex idea of the general will, into the very conditions of political legitimacy. As we

saw in section 6.3, the Republic of the General Will, because it is legitimate, must therefore

also be just. I contend that Kant’s theory of politics follows Hobbes in separating the

normative conditions of the right to perform as a state from the evaluative standards of the

quality of the state’s performance. What is more, Kant radicalizes Hobbes’s emphasis on the

importance of effective protection, which for Kant becomes the only necessary and sufficient

condition for legitimate statehood (on a republican understanding of what counts as

“effective protection”). On the other hand, Kant adopts a Rousseauian model of justice, of

how a state ought to exercise its (legitimate) authority. Some of Kant’s republican ideals,

notably the “idea of the social contract,” can be seen as attempts to reformulate (with some

important modifications) the institutional characteristics that make Rousseau’s Republic of

the General Will reliably just. In the end, like Hobbes, Kant sees the duty of political

obedience as a function exclusively of the state’s right to perform as such, independently of

the quality of its performance. In Kant’s view, we are obligated to obey the law even when it

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is substantively unjust, provided the legal system as a whole gives us genuine assurance and

protection for the enjoyment of “external” freedom. It is therefore an unconditional duty not

to undermine legitimate states, gravely unjust though they may be. As I will explain in

Chapter 9, what makes states legitimate is essentially their instantiation of the rule of law,

the antithesis of “barbarism.” Reading Kant as mediating between Hobbes and Rousseau is,

I think, a fruitful and textually faithful way to understand his political thought. It also helps

make sense of some of Kant’s more polemical views, notably on the subject of revolution.4

I should admit at the outset that Kant does not explicitly acknowledge the Hobbesian

provenance of the distinction between legitimacy and justice, or of his political ontology. But

that should not come as a surprise, nor does it detract from the historical accuracy of the

interpretive framework I propose. Though it is likely that Kant’s knowledge of Hobbes was

limited to De Cive, this would have sufficed for him to become familiar with the central

4 To my knowledge, only a handful of scholars explicitly acknowledge that Kant’s political thought can
be read with Hobbes and Rousseau as central points of reference, and none proposes a thorough interpretation
in those terms. Hassner, for example, believes that in Kant’s political theory “As in Hobbes, only the chief of
state may constrain others without being himself subject to constraint; but as in Rousseau, each, because joined
to all, obeys only himself” (1987 [1963], p. 605). Indeed, Kant agrees with Hobbes on the uncoercibility of the
sovereign (as does Rousseau, too), but it is a mistake to attribute to Kant the Rousseauian notion that citizens
obey only their own individual wills in obeying the laws. Kant appeals to that norm only in connection with the
Formula of the Kingdom of Ends, not in his political thought: “…the will of a rational being must always be
regarded as at the same time lawgiving, since otherwise it could not be thought as an end in itself. Reason
accordingly refers every maxim of the will as giving universal law to every other will and also to every action
toward oneself… from the idea of the dignity of a rational being, who obeys no law other than that which he
himself at the same time gives” (G 4:434).
Kersting’s reading of Kant comes closer in spirit to the interpretation I advance in Part III: “According
to Hobbes, as long as the sate exists at all then it is whatever it should be… Rousseau’s social contract, however,
can never be connected to any actual political reality… As a philosophy of compromise and reform, Kant’s
philosophy forms a pragmatic synthesis of Hobbes’s sense of political reality and Rousseau’s ideal of justice”
(1992, p. 359). But there also important differences between my view and Kersting’s. I do not think it is true
of Hobbes that each and every state is always already “whatever it should be” (see Chapter 3.5-7). More
importantly, what Kant adopts from Hobbes’s theory is not just some abstract sense of political realism, but (a
modified version of) the latter’s account of legitimacy or the right to perform as a state, along with some key
principles of political ontology. While Kant adopts an idealized Rousseauian standard to evaluate the quality
of the state’s performance, his “standards of what constitutes ‘legitimate’ state power… were virtually
Hobbesian” (Hill, Jr. 1997, p. 111). I would go farther: Kant comes closer to a de facto theory of legitimacy than
Hobbes himself!

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Hobbesian insights I find reflected in his philosophy of right.5 More to the point, Kant treats

Hobbes’s political theory as posing a philosophical challenge that nobody had successfully

met—the challenge of providing a genuinely moral foundation for political life, all the way

down. If Kant took himself to be responding to Hobbes, it is understandable that he may

have been reluctant to express his intellectual debts to the very theory of politics against

which he advances his own. Perhaps because his knowledge of Hobbes was limited, and

because his political thought is expressly aimed “against Hobbes and his Machiavellianism”

(DTP 23:134), Kant often misrepresents Hobbes’s views and rarely acknowledges the

Hobbesian origin of ideas that play an important role in his own political philosophy.

Unfortunately, scholars have a tendency to contrast Kant’s theory with Hobbes’s as Kant

understood it. But Kant is often wrong about Hobbes, at least on the reading of the latter that

I advanced in Part I. The result is that Kant scholars tend to neglect significant points of

agreement between Hobbes and Kant while also exaggerating their alleged divergences. In

my view, Kant’s politics are far more Hobbesian than contemporary interpreters, and even

Kant himself, realize. If Kant vindicated causality against Humean skepticism, thus reaching

a similar conclusion as the dogmatists’ but on radically different grounds, so, similarly, his

political theory argues for strikingly Hobbesian conclusions on the basis of avowedly un-

Hobbesian, strictly moral premises.6

5 There was not to be a full German translation of Leviathan until 1794, but Kant could have read the
1668 Latin edition. However, it is likely that he did not. I therefore concede that Kant may not have gotten his
political ontology directly from Hobbes, though it is undeniably Hobbesian in every respect. It is more plausible
to assume that he picked it up from Pufendorf, just like Rousseau did (see Chapter 5.1).
6 Chia-Yu Chou (2013) has recently argued that Hobbes and Kant are less “antithetical” as political
thinkers than has traditionally been thought. I agree with her conclusion, but take issue with the argument she
makes for it. She essentially endorses the Taylor-Warrender thesis I rejected in Chapter 1.4, and misconstrues
the sovereign’s non-justiciable duties of equity as full-blooded obligations (p.803). On the other hand, she
thinks that Kant’s political thought is largely independent, even “sometimes…. irreconcilable,” with his ethical
thought (p. 804). As I will argue at length in this and the next chapter, the connection between Kant’s ethics

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In contrast with his limited acquaintance with and recurrent misreading of Hobbes’s

work, Kant was a thorough and judicious interpreter of Rousseau.7 Thanks to his knowledge

of French, Kant read—and frequently referenced—the First Discourse, the Second Discourse,

Emile, the Nouvelle Héloïse, and The Social Contract, and he was only too happy to

acknowledge his debts to Rousseau. Just as Hume “first interrupted my dogmatic slumber”

(P 4:260), Kant openly admits that it was Rousseau who radically transformed his entire

ethical outlook, inspiring him to develop a practical philosophy centered on the value of

humanity. “There was a time when I believed that [thirst for knowledge] alone could

constitute the honor of mankind, and I had contempt for the rabble who know nothing.

Rousseau brought me around. This blinding superiority disappeared, I learned to honor

human beings, and I would find myself far more useless than the common laborer if I did not

believe that this consideration could impart to all others a value in establishing the rights of

humanity” (N&F Ri 37-39). Rousseau did not just change Kant’s personal attitude to his

fellow human beings. His work, Kant believed, was a truly transformative event in the

history of moral philosophy, on a par with Newton’s revolution in science. Just as “Newton

and his politics is much deeper and, in my view, by no means contradictory. It seems to me that Chou narrows
the theoretical gap between Hobbes and Kant at the expense of fidelity to their views.
7 I agree with Cassirer that Kant’s reading of Rousseau was generally quite accurate (1945, pp. 9-10, 20-
21, 25). In fact, the interpretation of Rousseau’s thought I developed in Part II concurs with Kant’s on a number
of important exegetical points. To name a few: the psychology of “natural man” or the “savage” (EMH 2:269);
perfectibility as manifesting itself in the progress of the species as a whole (IUH 8:18-19); the social and
psychological effects of amour propre (IUH 8:21); the theoretical use of conjectural history (CB 8:109); the
natural goodness thesis as a claim about (irretrievable) moral innocence (CB 8:115, A 7:326-327); the tension
between civilization and morality or virtue (CB 8:116, A 7:326, LP 9:451); and the cultural (social) causes of
the human need for political association (A 7:329). On Rousseau’s influence on Kant’s anthropology, see
Louden 2010 (esp. pp. 355-357).
It is revealing that Kant commented on the intensity of his intellectual engagement with Rousseau’s
writings, which he felt the need to re-read so as to reach the philosophical core often occluded by Rousseau’s
mesmerizing prose: “It is a burden for the understanding to have taste. I must read Rousseau so long that the
beauty of his expressions no longer disturbs me, and only then can I first investigate him with reason” (N&F Ri
27-28).

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saw for the first time order and regularity combined with great simplicity,” so it was

Rousseau who “discovered for the first time[,] beneath the multiplicity of forms human

beings have taken on[,] their deeply buried nature and the hidden law by the observation of

which providence is justified… After Newton and Rousseau, God is justified and Pope’s

theorem [that ‘Whatever is, is right’] is true” (N&F Ri 48).

Rousseau’s powerful influence on Kant’s moral philosophy, particularly on his

doctrine of autonomy, is widely recognized.8 What is less frequently emphasized is the

continuity between their political philosophies. Kant radicalized Rousseau’s conviction that

a normative theory of politics had to be constructed on the principle of freedom and on that

principle alone.9 In fact, Kant understands the dimension of freedom that matters for politics

(what he calls “external” freedom) exactly as Rousseau conceived of “civil freedom,” that is,

as non-domination or “independence from being constrained by another’s Willkür” (MM

6:237).10 As Ernst Cassirer has pointed out, “In this conviction Kant approached Rousseau,

8 See Neuhouser 2011, esp. pp. 4, 8-9. Even in Kant’s pre-critical ethical writings, before he abandoned
the Humean view of practical rationality as merely instrumental (more on practical reason in section 7.2), his
commitment to the Rousseauian idea of moral freedom as psychological self-mastery is unmistakable (see
Chapter 4.3 on Rousseau’s “moral freedom”). “The drives of human nature, which are called passions when
they are of a high degree, are the moving forces of the will; the understanding only comes in to assess both the
entire result of the satisfaction of all inclinations taken together from the end represented and to find the means
to this end. If, e.g., a passion is especially powerful, the capacity of the understanding is of little help against it;
for the enchanted human being sees very well indeed the reasons against his favorite inclination, but he feels
powerless to give them active emphasis” (EMH 2:261).
The same thought is recast in Kant’s later writings in terms of the contrast between pure practical
reason and inclination, where self-mastery consists in reining in the latter through the former: “Passions are
cancerous sores for pure practical reason… Affect does a momentary damage to freedom and domination over
oneself. Passion abandons them and finds its pleasure and satisfaction in a slavish mind” (A 7:266-267, emphasis
added).
9 I argue for this reading of Rousseau at length in Part II. As I interpret it, Rousseau’s political theory
can be thoroughly understood by focusing on the idea of “civil freedom,” pace the numerous commentators
who have approached Rousseau almost exclusively from the point of view of “moral freedom” or some
extrapolation thereof. See especially Chapters 4.3, 5.3, and 6.1 for my defense of the approach centered on civil
freedom or non-domination as opposed to the “social autonomy” interpretation of Rousseau.
10 See Chapter 4.3 for a general discussion of the idea of freedom as independence or non-domination.
Gregor translates Willkür as “choice” in this particular passage but as Paul Guyer has pointed out, Willkür refers
to the “faculty” or “power” of choice (see Guyer’s note 3 to Kersting 19992, p. 365).

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and in it he could greet him as a philosophical liberator”11—a liberator, I submit, from

Hobbes’s “Machiavelism” as Kant saw it. For Hobbes’s politics failed to take account of the

very idea of independence, let alone the need for a political theory built on the basis of it.

Just as Hume shattered the rationalistic faith of the German dogmatist, so Kant seems to have

seen Rousseau as taking aim at the amoralism of the Hobbesian foundations of politics.

“Hobbes considered all laws, even moral laws, as despotic, i.e. laws which do not require our

consent at all, at least our rational consent or concurrence. For he believed that wherever

power may reach, it would constitute what is right” (RPR Frag. 7667, 19:483). On Kant’s

reading of Hobbes, the latter’s temperament could not be more antithetical to the former’s

critical project as premised on the firm conviction that reason “has no dictatorial authority”

and that, on the contrary, its “claim is never anything more than the agreement of free

citizens” (CPR A738/B767).12

The appropriateness of reading Kant as mediating between Hobbes and Rousseau is

suggested by Kant’s own lectures on natural right, where he singles out these authors as

central to understanding what Kant believes to be his most significant contribution to the

contractualist tradition: “That entry into civil society is one of the first duties no one has yet

properly seen. Of course Hobbes and Rousseau have a few thoughts about that” (LF

27:1337).13 In Rousseau’s republican conception of political freedom Kant found the key to

11 Cassirer 1945, p. 18. Cassirer’s essay emphasizes the virtual identity between Kant’s “external”
freedom and Rousseau’s “civil freedom,” though he does not use either term.
12 For an illuminating analysis of this and other political metaphors in Kant’s First Critique, see O’Neill
1989, Essay 1 (“Reason and Politics in the Kantian Enterprise”).
13 There is some scholarly controversy about whether Kant was a contractualist theorist or not. Patrick
Riley, for instance, sees Kant as the most coherent of contractualists: “A coherent and consistent theory of will
as a kind of moral causality, as something distinguishable from appetite and desire and uneasiness and
willfulness, was what Kant brought to a contractarian tradition that had been resting on a slightly incoherent
metaphysic of morals” (1982, p. 204). Similarly, John Rawls sees Kant as a canonical figure in the contractualist
tradition: “My aim is to present a conception of justice which generalizes and carries to a higher level of

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filling this moral vacuum in Hobbes’s theory of the state. In one of the rare passages where

Kant comments favorably on Hobbes’s ideas, he says that “Universal security develops when

human beings make a universal right, set up a judge, and provide him with authority. Hobbes

is completely correct on this when he says exeundum est e statu naturali” (LF 27:1382). But

Kant’s concession to Hobbes is ironic. The cornerstone of Kant’s philosophy of right is the

idea that the injunction to leave the state of nature is primarily moral, and only derivatively

prudential. Kant’s answer to the question why we ought to live under a state is decidedly un-

Hobbesian.

To summarize the view: Kant picks up on two central commitments of Rousseau’s

thought. First, the normative priority of freedom in theorizing about politics; second, the

need for a robust account of the evaluative standards of the quality of a state’s performance

(one stronger, at any rate, than Hobbesian “equity”). Kant adopts and adapts a Rousseauian

idea of political justice through his “idea of the social contract” and he systematizes a political

abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant” (1999 [1971],
p. 10). Korsgaard follows Rawls: “Kant’s political theory… is a social contract theory, in which people unite
according to a General Will” (1996 [1989], p. 32). By contrast, scholars like Onora O’Neill have pointed out,
rightly to my mind, that Kant’s theory dispenses with the core voluntarist commitment common to the entire
contractualist tradition—that consent (in some form or other) is a necessary condition of political legitimacy:
“Kant has in fact moved away from the basic insights of other versions of the social contract tradition to a
different type of justification, to which neither actual nor hypothetical consent is fundamental” (2012 [2000],
p. 38). Nicholson is of a similar opinion; for him, Kant is not really “writing in [the contractarian] tradition but
in a priori terms” (1976, p. 216). Kersting also claims (correctly, in my view) that “Kant has no further use for
the idea of a contract in the theory of the legitimation of the state” (1992, p. 354). Pippin (2006, p. 442n7) and
Westphal (2014, pp. 177, 179) go farther and locate Kant in the “rational natural right” or “natural law
constructivism” traditions, respectively.
To the extent that voluntarism (consent, whether explicit or tacit or attributed) is central to any
contractualist theory, then Kant’s certainly is not one. The reading I defend in section 9.1 in particular supports
the view that, for Kant, “much of the work is done by the idea of rationality rather than by the idea of consent”
(Pallikkathayil 2010, p. 121). Having said all that, Kant does agree with a fundamental premise of contractualist
thought: that there are no natural claims to authority. All political authority is, for Kant as much as for any
other contractualist, purely conventional. It is perhaps for this reason that Kant sees himself as working within
the contractualist tradition, as signaled by his admittedly sui generis but certainly deliberate use of the idea of
a “social” or “original” contract in his political writings. It seems to me that the differences between Kant and
every other writer in the social contract tradition are best addressed by focusing on the substance of their
arguments rather than disputing over labels. De nominibus non est disputandum.

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theory based exclusively on the value of independence or non-domination. But he

nevertheless follows Hobbes in stopping short of building the requirements of justice into

the necessary conditions of the right to perform as a state. In the end, Kant agrees with

Hobbes on the central idea that the right to perform as a state is independent from the quality

of a state’s performance, that legitimacy and justice are distinct dimensions for the

normative assessment of political institutions. Echoing Hobbes (whether deliberately or

not), Kant concludes that our political obligations bind us unconditionally even in unjust

polities, provided they are legitimate nonetheless. A state that properly institutes the rule of

law counts as an “onmilateral will” and is thus authorized to act in the people’s name: a social

condition structured around general laws that are properly enforced is sufficient for

legitimacy.

The argument I present for this interpretation of Kant’s political thought has two

parts. The remainder of Chapter 7 and Chapter 8 explain the moral foundations of the

Kantian state and the special normative status of the demands of external freedom as both

moral duties and coercible rights. Chapter 9 builds on those foundations to account for the

structure of the legitimate Kantian state. In section 7.2 I explain the basic ideas of Kant’s

doctrine of “inner” freedom, emphasizing the critical distinction between actual autonomy

and the capacity for autonomy. In my view, it is the latter that must be equated with

“humanity,” or the unconditional value of rational agency—an idea that will play a central

role in the derivation of the Innate Right to Freedom from the Formula of Humanity (Chapter

8.1). I then take up Kant’s idea of “external” freedom in section 7.3 and, in agreement with

several other commentators, show that it refers to the republican idea of non-domination I

also associate with Rousseau’s “civil” freedom. In section 7.4 I pause to discuss a contentious

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problem in Kant scholarship: how exactly should one construe the relation between Kant’s

moral and his political philosophy? I consider and reject two common interpretations: the

“separationist” view that treats the two parts of Kant’s practical philosophy as theoretically

independent and the “developmentalist” view that identifies the value of political

institutions with the “promotion” of humanity. The approach I favor also gives a central

place to the value of humanity, but emphasizes the role of the state in protecting rather than

promoting humanity. Like Christine Korsgaard and Japa Pallikkathayil, I think respect for

humanity grounds the value of political institutions insofar as the latter are necessary to

respect the former.14 In Chapter 8 I fill out the gaps of most humanity-centered

interpretations by emphasizing the crucial logical role of temporal and spatial finitude in

Kant’s derivation of the value of external freedom and the coercibility of the moral

entitlements associated with it.

7.2 Dimensions of Freedom I: “Inner” Freedom

Kant’s most thorough work of political and legal philosophy is the first part of the

Metaphysics of Morals (1797), the “Doctrine of Right.” Unlike the Groundwork (1785) and the

Critique of Practical Reason (1788), which articulate the metaphysical foundations of

morality in pure practical reason, the Metaphysics of Morals is Kant’s systematic application

of the moral principles vindicated in the earlier works to the special case of human beings as

finite rational agents, as agents who exist phenomenally in space and time.15 That the moral

14 See especially Korsgaard 1996 [1986] and 1996 [1989] and Pallikkathayil 2010.
15 Strictly speaking, the Metaphysics of Morals is only the first part of the application of the moral law to
human beings: it specifies what the moral law requires of us qua finite, embodied rational agents. The second
part, the “empirical” side of ethics, is “practical anthropology” (G 4:388), which identifies “the subjective

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law applies to us qua rational and hence free agents, Kant takes to have shown in the earlier

works (particularly in Section III of the Groundwork and at greater length in the Second

Critique). The question of the Metaphysics of Morals is, what exactly does the moral law

require of us humans as finite rational agents? Kant’s answer is deceptively simple: the

moral law requires that we act in accordance with the demands of freedom.

Now to act “in accordance with the demands of freedom” is an ambiguous demand.

For Kant admits that there are two different perspectives from which we can take ourselves

to be free, and hence two corresponding dimensions in which the demands of freedom apply

to us. The dimension of “inner” freedom, the freedom of morality or “virtue,” concerns the

reasons we ought to heed in forming our intentions for action. The dimension of “external”

freedom, the freedom of politics or “right,” pertains to our standing in relation to other

agents with whom we share the physical world on which we act. Whereas the demands of

conditions in human nature that hinder people or help them in fulfilling the laws of a metaphysics of morals”
(MM 6:217; cf. Louden 2010, p. 355-357). Moral philosophy uses anthropological data “only as a counterweight
against inducements to the contrary [of what the moral law requires], to offset in advance the error of biased
scales in practical appraisal, and only then to ensure that the weight of pure practical reason’s a priori grounds
will turn the scales in favor of the authority of its precepts” (MM 6:216). Anthropology “cannot be dispensed
with, but it must not precede a metaphysics of morals or be mixed with it” (MM 6:217). In other words, the
Metaphysics of Morals is about what the moral law requires of any finite rational agent, whereas anthropology
is concerned with identifying the most empirically reliable mechanisms (social, psychological, and otherwise)
for human beings in particular to act consistently on the moral law. If Martians exist and are also (finite)
rational agents, the Metaphysics of Morals applies to them as much as it does to us, but there would need to be
a new empirical science that dealt with the characteristically Martian “helps” and “hindrances” to moral
motivation—a kind of “martiology” analogous to Kant’s anthropology. (For Kant’s own speculations about
extraterrestrial rational agents, see A 7:172-178.)
The philosophical argument in the Metaphysics of Moral only appeals to one fact about human beings:
our finitude as rational agents. Chapter 8.2 deals precisely with the crucial political implications of spatio-
temporal finitude. Crucially, however, this fact is not empirical, but transcendental because our spatial and
temporal finitude are conditions of possibility of our phenomenal existence. The transcendental fact of human
finitude is constitutive of human agency as such, necessarily true of all human agents qua phenomenal beings.
Consequently, that human agents exist in time and space is, in Kant’s terms, a synthetic a priori predicates about
us, whereas anthropological observations are invariably synthetic a posteriori (incidental rather than
constitutive). O’Neill (1989, pp. 71-74) is right to contrast the factual premises of the Metaphysics of Morals
with those of Kant’s anthropology, but she fails to explain the all-important difference between their epistemic
credentials. Finitude is not just a more parsimonious empirical premise than the data of anthropology; it is,
rather, a transcendental truth about us, as opposed to an observed and generalized regularity drawn from
sensible experience.

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“inner” freedom are volitional and subjective, those of “external” freedom are behavioral and

objective. I will discuss these two dimensions in that order to understand what is the place

within Kant’s practical philosophy of the idea of “external” freedom, with which politics is

exclusively concerned.

From the subjective point of view, human agents are free in two respects: (i) we are

not determined to act in any given way by natural causes in the form of our contingently given

“subjective motivational sets;”16 and (ii) we are capable of rational self-determination. The

non-determination of our actions by natural causes is phenomenologically manifest in the

fact of reflective distance: it is the distinguishing mark of human agents that we deliberate

on and can endorse (or not) the different inclinations or desires that present themselves as

considerations in favor (or against) possible courses of action.17 In Kant’s words, a rational

agent is “endowed with consciousness of his causality with respect to actions, that is, with a

will” (G 4:449; 4:457) in virtue of which he enjoys “the inner freedom to release himself from

the impetuous importunity of inclinations” (CPrR 5:161). This fact of reflective distance

16 I borrow the phrase from Williams 1981 [1980]. The basic elements of a finite agent’s subjective
motivational set are what Kant calls “inclinations” [Neigungen], broadly corresponding to Hume’s desires.
17 The phrase “reflective distance” is Korsgaard’s (2008 [1996], pp. 179, 186, and 2008 [1999], p. 87). It
roughly corresponds to the phenomenological argument for the reality of freedom in the Groundwork: “every
being that cannot act otherwise than under the idea of freedom is just because of that really free in a practical
respect” (G 4:452, emphasis added; cf. CPrR 5:105-106). Kant elaborates on this argument in the Second
Critique: “Freedom, and the consciousness of freedom as an ability to follow the moral law with an unyielding
disposition, is independence from the inclinations, at least as motives determining (even if not affecting) our
[faculty of] desire” (CPrR 5:117, where “faculty of desire” is equivalent to the will: CPrR 5:24-25, 55, MM 6:211).
The introspective fact of reflective distance leads to Kant’s doctrine of the Fact of Reason: “This Analytic shows
that pure reason can be practical… and it does so by a fact in which pure reason in us proves itself actually
practical… At the same time, it shows that this fact is inseparably connected with, and indeed identical with,
consciousness of freedom of the will” (CPrR 5:42, emphasis added).
Kant does not seem to take the phenomenological argument (or the Fact of Reason) to be
philosophically decisive. After all, it only shows that finite rational agents must take themselves to be free; it
does not demonstrate that they actually are free. Kant’s argument for the latter, stronger thesis is the so-called
Two Standpoint Hypothesis (G 4:452-455, CPrR 5:45-47, 162; see O’Neill 1989, Essay 3, for commentary). For
my purposes, however, the phenomenological argument suffices to explain what Kant meant by the “negative”
conception of freedom.

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discloses our capacity for “Freedom of choice [Freiheit der Willkür]” as “independence from

being determined by sensible impulses.” This, Kant goes on to say, “is the negative concept

of freedom” (MM 6:213-214).

What is distinctive about Kant’s ambitious theory of freedom is the further claim that

rational agents cannot be just “negatively” free. The freedom of a human being cannot

consist only in not being determined in this or that way by his or her desires or inclinations.

Our freedom cannot be merely the scholastics’ “libertas indifferentiae,” the freedom of

indifference (MM 6:226).18 “[F]reedom, although it is not a property of the will in accordance

with natural laws, is not for that reason lawless but must instead be a causality in accordance

with immutable laws but of a special kind; for otherwise a free will would be an absurdity”

(G 4:446, emphasis added). A free will that was groundless or lawless, helplessly indifferent

to the various desires that affect it, would be an “absurdity” because its determinations

would be nothing more than brute, unintelligible facts. This cannot possibly the whole story

about freedom for Kant. If it were, then human beings would be free at the expense of their

actions’ being intelligible, as there could be no possible explanation why a pure negatively

free will chooses in this way rather than that. Because any acceptable account of freedom

must render choice intelligible, the negative conception of freedom is insufficient all by itself.

It therefore needs to be complemented by its “positive” counterpart: “the ability of pure

18 Kant probably had a view like Augustine’s in mind. For Augustine, “free choice of the will is among the
intermediate goods, because it can be used either rightly or wrongly, but we cannot live rightly without it”
(1993 [391-395], “Reconsiderations,” §6, p. 129; cf. also Book II, §19, p. 67). Because the will is intrinsically
indifferent, the possibility of a consistently upright will can only be explained in terms of a divine intervention
foreign to the will’s nature: “it is indeed by the will that we sin or live rightly. But unless the will is liberated by
grace from its bondage to sin and is helped to overcome its vices, mortals cannot lead pious and righteous lives”
(Op. Cit., “Reconsiderations,” §3, p. 127). Kant’s “positive” conception of freedom effectively takes the place of
divine grace in Augustine’s account. This is but an example of Kant’s effort to secularize fundamental Christian
ideas about agency, morality, and the value of human life throughout his practical philosophy.

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reason to be of itself practical” (MM 6:214). Freiheit der Willkür “is freedom in the negative

sense, whereas the lawgiving of its own on the part of pure and, as such, practical reason is

freedom in the positive sense” (CPrR 5:33). Absent the possibility of rational self-

determination, the idea of an indifferent free will, of merely “negative” freedom, is

meaningless. Consequently, in addition to enjoying reflective distance from our desires, we

must take ourselves to be free in the stronger sense of having the power to set our own

ends—and to do so on intelligible grounds. Reflective distance and the capacity for rational

self-determination are independently necessary and jointly sufficient conditions to qualify

as a free finite agent.19

In order to better understand the novelty and implications of Kant’s theory of

freedom, it is helpful to put it in historical context. Kant attempts to develop a doctrine of

free will that can defend the “negative” conception of freedom from familiar rationalist

objections, while vindicating the “positive” conception of freedom in the face of empiricist

skepticism. In the rationalist camp, there were two major approaches to the prima facie

inconsistency between libertas indifferentiae and the demand to render choice intelligible

(as expressed by the principle of sufficient reason). Spinoza was representative of the

incompatibilist view: since the principle of sufficient reason and the scholastic idea of

freedom could not be both true, the latter had to be given up. This inevitably led Spinoza to

defend an uncompromising eliminativism about freedom: “Men are deceived in that they

19 In the case of pure rational wills (“divine” or “holy” agents, of whom will say more in Chapter 8.1), the
“negative” conception of freedom is not necessary. Freiheit der Willkür cannot be ascribed to “pure” wills
because they lack subjective motivational sets from which they could distance themselves in practical
deliberation. Because pure rational wills have no phenomenal existence—they do not exist in time and space—
, they cannot possibly be immersed in the world of natural causality, and so a fortiori it makes no sense to
exempt their volition from the operation of natural laws which do not apply to them in the first place. The
“positive” conception of freedom (the capacity for rational self-determination) suffices to describe the sense in
which such merely noumenal beings are free.

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think themselves free, an opinion which consists simply in the fact that they are conscious of

their actions and ignorant of the causes by which those actions are determined. This,

therefore, is their idea of liberty: that they know no cause of their actions. For when they

assert that human actions depend on the will, these are just words, of which they have no

idea. They are all ignorant of what the will is.”20 On account of the same “absurdity” Kant

sees in the scholastic model, Spinoza denounced it as an illusion: “There is in the mind no

absolute, i.e. no free, will, but the mind is determined to will this or that by a cause, which is

again determined by another, and that again by another, and so on to infinity.”21 In contrast

with Spinoza’s approach, Leibniz openly defends libertas indifferentiae: “assuming that by

freedom of indifference we understand a freedom opposed to necessity…, I agree about this

freedom. For, I am actually of the opinion that our freedom, as well as that of God and the

blessed spirits, is not only exempt from coercion, but also from absolute necessity, even

though it cannot be exempt from determination and certainty.”22 The problem for Leibniz is

that he lacked an account of determination without necessity, of how choice in the case of,

say, Buridan’s Ass is still intelligible with a merely indifferent will. Leibniz tries to dissolve

the paradox of presumptively unintelligible choice by appeal to his principle of the identity

of indiscernibles.23 Since “In things absolutely indifferent there is no foundation for choice,

and consequently no election or will,”24 Buridan’s Ass may do whatever he happens to

choose consistently with the principle of sufficient reason. “There is no such thing as two

20 Spinoza 2000 [1677], Part II, Scholium to Prop. 25 (p. 144); cf. also Part III, Scholium to Prop. 2, (p.
168).
21 Op. cit., Part II, Proposition 48, p. 155.
22 Leibniz 1989 [1707], p. 194.
23 See Rescher 1959 for an excellent history of Buridan’s paradox and of the long history of philosophical
responses to it, from Anaximander to Lewis Carroll. Rescher comments only superficially on Kant’s “behind-
the-scenes” approach to the problem of seemingly un-principled, unintelligible choice (pp. 162-164).
24 Leibniz 1989 [1715-1716, Fourth Letter, §1, p. 327.

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individuals indiscernible from each other;”25 consequently, there cannot be, logically

speaking, any preference ordering between two courses of action that are evaluatively

identical from the agent’s point of view. Like Leibniz, Kant retains the “negative” conception

of freedom, but he agrees with Spinoza that it is insufficient all by itself (and that its

paradoxical implications can hardly be dissolved by a dubious application of Leibniz’s

identity of indiscernibles). By insisting on rational self-determination as the indispensable

complement of reflective distance, Kant rescues the truth in the scholastic’s libertas

indifferentiae from the threat of absurdity that Spinoza saw all too clearly. For Kant, we can

have “negative” freedom without rendering choice unintelligible only because it is always

conjoined with “positive” freedom.

But Kant also had to vindicate the very idea of rational self-determination in the face

of Hume’s famous denial that “reason alone is ever the cause of any action.”26 As far as Hume

was concerned, “Reason is, and ought to be, the slave of the passions, and can never pretend

to any other office than to serve and obey them.”27 As a “slave of the passions,” Humean

practical reason is limited to establishing instrumental relations, that is, to pointing out to

the agent what are the best means to achieve a given end, where the end in question is fixed

by the agent’s contingent subjective motivational set and not by reason as such. Kant rejects

Hume’s view on two grounds. First, the fact of reflective distance (our Freiheit der Willkür)

entails that the will cannot be construed as a vector product of desires, as if one’s intentions

simply emerged from the balance of forces among the constituent desires of the one’s

25 Op. cit., §4, p. 327.

26 Hume 1978 [1739], Book II, Part III, §3 (p. 413).
27 Op. cit., Book II, Part III, §3 (p. 415).

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subjective motivational set.28 Second, and most importantly, Kant’s claim that freedom

cannot just be libertas indifferentiae means that action necessarily springs from some

intelligible maxim or other (even if the maxim’s intelligibility falls short of full-fledged

rationality). This intelligibility constraint on maxims presents the Humean with the

following dilemma: either reason is not practical at all, not even as an instrumental guide to

action, or it must be practical all the way down, that is, capable of setting ends independently

of one’s subjective motivational set.29 If the Humean holds onto the motivational efficacy of

instrumental reason, he is committed to conceding that we are also capable of rational self-

determination in the adoption of our ends. The only alternative is to drop rationality from

the picture of agency altogether. Hume’s admission that “reason is a wonderful and

unintelligible instinct in our souls” whose motivational power is limited to instrumental

28 Notice that this consideration also militates against Hobbes’s (similarly empiricist) idea of the will as
merley “the last appetite” of deliberation. On Hobbes’s theory of the will and voluntariness, see Chapter 2.3.
29 Kant’s rejection of the possibility of merely instrumentally rational agency is aptly emphasized by
O’Neill when she explains that “Kant’s claim is that any practical reasoner—even a finite rational being—can
do more than calculate means to ends. The favored empiricist conception of practical rationality is not merely
not the only one: It is never found in isolation. The only beings who can reason instrumentally are free agents”
(1989, p. 73). However, O’Neill’s statement misrepresents Kant’s actual argument for this view. Kant does not
just state that as a matter of contingent or empirical fact, there are no any merely instrumentally rational agents.
His view is much stronger. For Kant, it is impossible that there be any such agents. A merely instrumentally
rational agent would not be a rational agent at all: “For, that he has reason does not at all raise him in worth
above mere animality if reason is to serve him only for the sake of what instinct accomplishes for animals;
reason would in that case be only a particular mode nature had used to equip the human being for the same
end to which it has destined animals, without destining him to a higher end… he has [reason] for a higher
purpose: namely, not only to reflect upon what is good or evil in itself as well—about which only pure reason,
not sensibly interested at all, can judge—but also to distinguish the latter appraisal altogether from the former
and to make it the supreme condition of the former” (CPrR 5:62).
Although not offered as an interpretation of Kant’s texts, the most compelling Kantian argument for
the impossibility of merely instrumentally rational agency is Korsgaard’s (1986). Her view is roughly this: if
the principle of instrumental rationality can effectively motivate me to  as a means to , this must be because
the rational (causal) connection between -ing and -ing is itself capable of motivating me to act—which is to
say that I can be motivated to act by reason as such (since -ing is not analytically deducible from -ing and so
my desire to  does not by itself contain or entail a desire to ). If one grants the motivational efficacy of the
principle of instrumental reason, one is also committed to acknowledging the motivational efficacy of (pure)
practical reason generally. The instrumentally rational agent must therefore also be capable of acting on ends
endorsed on purely rational grounds. Korsgaard’s analysis perfectly coincides with Kant’s thesis that there is
no Willkür without Wille, no “negative” freedom without “positive” freedom.

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relations, is completely untenable from Kant’s point of view.30 Kant’s conclusion is very

strong indeed: “reason… is given to us as a practical faculty, that is, as one that is to influence

the will” (G 4:396), and not merely by supplying the agent with instrumentally useful beliefs

about causal relations. The constituents of our subjective motivational sets are not beyond

rational scrutiny. “Freedom cannot be divided. The human being is either entirely free” to

set ends as well as means “or not free at all” (N&F 17:467). Hume got it all backwards: it is

not reason but “inclination” that is “blind and servile, whether it is kindly or not” (CPrR

5:118). If Kant is right, then action is always grounded in some intelligible principle or

maxim, the adoption of which is expressive of the capacity for rational self-determination.

Simply put, the human will must be positively as well as negatively free.

Kant’s practical philosophy thus argues for a strong constitutive relation between

agency, rationality, and morality. Human beings are free because they enjoy reflective

distance from their contingent desires and their actions are always grounded in intelligible

maxims or intentions which express their (constitutive) capacity for rational self-

determination. Because freedom must involve both negative non-determination by natural

causes and positive determination by intelligible principles of choice, freedom turns out to

be nothing more or less than pure practical rationality itself. Moreover, simply having the

capacity for rational self-determination embodies our commitment to the norms of

rationality as standards for the evaluation of our maxims. When we act on those norms,

when our maxims are not just intelligible but genuinely rational, we act autonomously, that

is, in accordance with our true nature as rational beings. And to the extent that we

30 Op. cit., Book I, Part III, §16 (p. 179), emphasis added. The idea that reason is “unintelligible” must have
surely seemed to Kant like an unwitting reductio on Hume’s part.

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autonomously adopt genuinely rational maxims, we will also act morally because moral

norms are a subset of rational norms. To be a rational agent is therefore tantamount to being

capable of morally autonomous volition. “As a rational being, and thus as a being belonging

to the intelligible world, the human being can never think of the causality of his own will

otherwise than under the idea of freedom… With the idea of freedom the concept of

autonomy is now inseparable combined, and with the concept of autonomy the universal

principle of morality, which in idea is the ground of all actions of rational beings” (G 4:452).

We are bound to, and capable of acting on, the norms of morality just because we are rational

agents.31

Kant very carefully keeps track of the negative and positive aspects of freedom by

labelling them differently. Negative freedom, or the power of choice made possible by my

reflective distance from my subjective motivational set, is Willkür; positive freedom, or the

power of spontaneously endorsing ends on intelligible grounds, is Wille.32 As I have

explained, Kant’s ambitious claim is that there is no Willkür without Wille: no freedom of

choice that is not also principled, intelligible choice. In every single action human agents

exercise their free choice (Willkür) by acting on some incentive of the will or other which

they come to adopt or endorse on an intelligible principle that emanates from the Wille. Now,

31 In terms of contemporary debates in metaethics, this amounts to saying that Kant is a constitutivist
par excellence. For Kant, the norms of morality are derivable from the constitutive norms of rational agency—
a view which enables him to argue for universally binding moral norms without appeal to an externalist account
of reasons for action or a realist conception of value. “[Morality’s] law is so extensive in its import that it must
hold not only for human beings but for all rational beings as such, not merely under contingent conditions and
with exceptions but with absolute necessity” (G 4:408). To be a rational agent is to be intrinsically committed
to the norms of morality and to be able to act on them precisely in virtue of their rational validity. For Kant,
“immoralism” is just a form of irrationality, a logical mistake of sorts.
32 This distinction is clear in Kant as early as the Groundwork, although he is not always consistent in the
use of Wille and Willkür in that particular text, e.g.: “Will [Wille] is a kind of causality of living beings insofar as
they are rational, and freedom [Freiheit] would be that property of such causality that it can be efficient
independently of alien causes determining it” (G 4:446). Here, “Freiheit” simpliciter clearly refers to what in
the Metaphysics of Morals Kant more accurately calls “Freiheit der Willkür.”

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crucially, this is not to say that the principle in question is always a fully rational one

(although it ought to be). I exercise my Willkür by reflecting on the different incentives on

which I could act, not being directly impelled to action by any one of them; I exercise my

Wille in endorsing a given incentive and making it my end, in the form of an intelligible

maxim or intention. But only when I act on genuinely rational maxims is the Wille exercised

adequately and in its full potential, as self-legislating pure practical reason. The test for the

adequate exercise of one’s Wille is none other than (any of the four formulas that express)

the categorical imperative or “the condition of [the maxim’s] qualifying as universal law”

(MM 6:214).33 Depending on the formulation of the categorical imperative, the test for the

rationality of maxims will focus either on their “matter” or “object” of choice (i.e., the end of

the action) or the “form” of the maxim as such. From the point of view of a maxim’s matter,

the categorical imperative requires that the ends of my actions always respect the value of

humanity “as an end in itself.” From the point of view of a maxim’s form, the categorical

imperative requires that the maxim be suitably universalizable without logical, nomological

or volitional contradiction.34 Only the rational agent who exercises the capacity for rational

33 In the order of Kant’s presentation in the Groundwork, the four formulations of the categorical
imperative are the following: [1.] Formula of Universal Law: “I ought never to act except in such a way that I
could also will that my maxim should become a universal law” (G 4:402), of which the Formula of Universal
Law of Nature is just a variation: “Since the universality of law in accordance with which effects take place
constitutes what is properly called nature… the universal imperative of duty can also go as follows: act as if the
maxim of your action were to become by your will a universal law of nature” (G 4:421). [2.] Formula of
Humanity: “So act that you use humanity, whether in your own person or in the person of any other, always at
the same time as an end, never merely as a means” (G 4:429). [3.] Formula of Autonomy: “the idea of the will
of every rational being as a will giving universal law” (G 4:431). [4.] Formula of the Kingdom of Ends: “A rational
being belongs as a member to the kingdom of ends when he gives universal laws in it but is also himself subject
to these laws” (G 4:433).
34 The qualifier “suitably” is necessary because every categorical imperative test is highly sensitive to the
description of the maxim under consideration (Hill, Jr. 1997, pp. 116-122). The “contradiction in conception”
application of the Formula of Universal Law tracks logical consistency; the Formula of Universal Law of Nature
tracks nomological consistency; and the “contradiction in the will” application of the Formula of Universal Law
tracks volitional consistency.
Kant sometimes speaks as if the formal test for the rationality of maxims was either primary or the only morally
relevant one, e.g.: “For, the will [Wille] stands between it’s a prior principle, which is formal, and its a posteriori

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self-determination or Wille adequately or in its full potential is also autonomous: “Autonomy

of the will [Willens] is the property of the will [Willens] by which it is a law to itself

(independently of any property of the objects of volition). The principle of autonomy is,

therefore: to choose only in such a way that the maxims of your choice are also included as

universal law in the same volition” (G 4:440).35

Kant’s use of Wille can be confusing because it designates, depending on the context,

two distinct ideas. At times, he writes as if Wille was the capacity to act on fully rational

principles, that is, the capacity for autonomous volition: “The Wille is thought as a capacity

[Vermögen] to determine itself to acting in conformity with the representation of certain

laws” (G 4:427, emphasis added). But he also often writes as if Wille referred only to

instances of the fully adequate exercise of that capacity, namely, instances of genuinely

rational or autonomous self-determination, e.g.: “Laws proceed from the Wille,” where

“laws” are implicitly contrasted with not-fully-rational maxims (MM 6:226).36 Every human

incentive, which is material, as at a crossroads; and since it must still be determined by something, it must be
determined by the formal principle of volition as such when an action is done from duty, where every material
principle has been withdrawn from it” (G 4:400). But this is not actually the case. Not every formula of the
categorical imperative abstracts from the “matter” or ends of maxims to consider the “form” alone, as
exemplified by the Formula of Humanity. Furthermore, Kant claims that all the formulations of the categorical
imperative “are at bottom only so many formulae of the very same law” (G 4:436)—which suggests that there
are no priority relations among them and that each should entail every other.
I discuss the importance of “moral ends” and the Formula of Humanity for Kant’s ethics in Chapter 8.1
and suggest a way to derive the Formula of Universal Law from it (see p. 367n10). For interpretive purposes, I
take Kant’s word at face value and treat the Formula of Humanity as on a par with the Formula of Universal
Law, despite his misleading tendency to overemphasize the latter at the expense of the former.
35 If Kant is to be believed on the equivalence of all the formulations of the categorical imperative (see
note 34 supra), then the last clause of this sentence could just as well read “…in such a way that the maxims of
your choice are consistent with respecting humanity as an end in itself,” as per the Formula of Humanity.
36 Kant himself hints at this ambiguity when he contrasts the capacity to act morally with an agent’s
steadfastness in exercising that capacity appropriately: “For while the capacity (facultas) to overcome all
opposing sensible impulses can and must be simply presupposed in man on account of his freedom, yet this
capacity as strength (robur) is something he must acquire” (MM 6:397).
Paul Guyer tries to distinguish the two ideas when he writes that “Kant’s term Willkür is sometimes
translated as “faculty of choice” or “elective will,” to distinguish it from the Wille as the capacity for actually
making choices as opposed to the source of rational principles of choice” (note 3 to Kersting 1992, p. 365).

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being is endowed with Wille as the capacity for autonomous self-determination, but we

can—and most often do—fail to exercise it appropriately. Most of our actions are in fact

heteronomous, not autonomous. What is worse: we cannot know for sure in any given case

whether we have acted autonomously or not! (A 7:135) The important point is that Kant

clearly thinks that even heteronomous actions are backed by an intelligible principle of

choice, albeit not a genuinely rational one by the standards of the categorical imperative. “A

rule that the agent himself makes his principle on subjective grounds is called his maxim”

(MM 6:225)—and rules, of course, are intelligible principles of action, even if they do not

qualify as genuine “laws” once tested through the formulae of the categorical imperative.37

Guyer is right about Willkür (see p. 312n10), but wrong about Wille. If Wille is “the capacity for actually making
choices,” then it is identical Willkür.
37 For a compelling Kantian argument for the view that every action follows from some intelligible
principle or other, even if not a fully rational one, see Korsgaard’s refutation of the possibility of “particularistic
willing” (2008 [1999], esp. pp. 123-124; see also p. 201n56). Though Kant does not press the point himself, it
is clear that maxims in general are intelligible principles which only deserve to be called “laws” when they
cohere with the demands of pure practical reason as expressed by the categorical imperative: “A maxim is the
subjective principle of volition [Princip des Wollens]; the objective principle (i.e., that which would also serve
subjectively as the practical principle for all rational beings if reason had complete control over the faculty of
desire) is the practical law” (G 4:401n). All maxims are principles, but only moral maxims are also laws in the
sense that any rational agent can be motivated to act on them by virtue of “respect for law” or “the
representation of the law in itself” alone, regardless of the particular agent’s inclinations or desires (G 4:400-
401). Again: “A maxim is a subjective principle of action, a principle which the subject himself makes his rule”
(MM 6:225). The point is made again, perhaps in clearer fashion, in the Second Critique: “Practical principles
are propositions that contain a general determination of the will, having under it several practical rules. They
are subjective, or maxims, when the condition is regarded by the subject as holding only for his will; but they
are objective, or practical laws, when the condition is cognized as objective, that is, as holding for the will of
every rational being” (CPrR 5:19).
Elsewhere, Kant draws a distinction that confirms that every action springs from an intelligible
principle, even when the end of the action is heteronomously endorsed: “The dependence of a contingently
determinable will on principles of reason, however, is called an interest… But even the human will can take an
interest in something without therefore acting from interest. The first signifies practical interest in the action,
the second, pathological interest in the object of the action” (G 4:413n). For any rational agent, it is not true
that “interest impels me” to act; “I must still necessarily take an interest in it,” that is to say, I must endorse the
interest by making it my (intelligible) principle of action or maxim. The important point is that to “take an
interest” in an incentive of the will or to adopt a maxim as a subjective principle of volition is still, in every case,
an exercise of our capacity for rational self-determination, however inadequate in the case of heteronomous
volition: “From the concept of an incentive arises that of an interest, which can never be attributed to any being
unless it has reason and which signifies an incentive of the will insofar as it is represented as reason” (CPrR
5:79).

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In order to keep track of the two senses of Wille in Kant, it may be helpful to construe

the Wille as a “goodness-fixing kind,” a kind such that “what being a K is itself sets the

standards that a K has to meet if it is to be good qua K.”38 Wille, as the capacity for rational

self-determination, is such that its nature entails how it ought to be exercised—namely, by

adherence to norms of rationality. While Wille sometimes designates the kind (= will as

capacity for autonomous or rational self-determination), it also sometimes designates

“good” tokens of the kind (= actually autonomous volition). For goodness-fixing kinds

generally, a token’s failure to be good qua instance of a kind does not mean that it does not

belong to the kind in question; the token is just a defective instance of the kind. 39 Similarly,

a heteronomous will is certainly a defective Wille, a Wille-as-capacity improperly exercised,

but a Wille all the same.40

The distinction between Wille-as-capacity and Wille-as-adequately-exercised-

capacity is essential to understanding Kant’s view about the value of human life. Whereas

the moral worth of our actions depends on their being autonomously self-legislated, our

value or “dignity” as agents does not (G 4:434). The “dignity” of a human being is a function

38 Thomson 2008, p. 21
39 This is true up to a point, of course. A sufficiently defective token may cease to belong to the relevant
goodness-fixing kind past a certain threshold. This is a general feature of all goodness-fixing kinds. It may
apply to the Wille-as-capacity in cases of addiction, for instance. Addiction poses an interesting challenge to
the Kantian because “humanity or autonomy is turned against itself,” requiring “protection against itself”
(Korsgaard 2008 [1997], pp. 258-259).
40 Failure to grasp the subtle but important difference between the two senses of Wille can lead to serious
interpretive confusion. Consider, for instance, Patrick Riley’s account of the Wille/Willkür distinction: “The first
(Willkür) [Kant] defined as consciousness of the capacity of one’s action to produce an object in accordance
with a concept; the second (Wille) he defines as a Willkür whose “internal ground of determination” is found in
the reason of the subject… In Kant’s claim that the Wille is simply “practical reason itself” it seems that Wille is
only a certain kind of Willkür, one that is not merely free of causality (the negative concept of freedom) but one
in which “pure reason is itself practical” (the positive concept of freedom)” (1982, pp. 145-146). Riley must
take Wille to refer only to fully autonomous volition; otherwise, it would not make sense to think of Wille as
just a “certain kind” of Willkür. But as I have explained, this is not Kant’s view at all: for him, Willkür must
always be conjoined with Wille as capacity, a capacity that is displayed (if inadequately) even in heteronomous
action.

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exclusively of the capacity for autonomous self-determination and so uncompromised even

when we fail to exercise it properly by adhering to the categorical imperative as its

constitutive norm. “Hence morality, and humanity insofar as it is capable of morality, is that

which alone has dignity” (G 4:435, emphasis added). Even a heteronomous human agent

retains the dignity of his or her humanity, for as long as he or she remains capable of

autonomous volition. “To satisfy the categorical command of morality is within everyone’s

power at all times” (CPrR 5:36) because the “receptivity” to being motivated by the moral

law is a constitutive feature of human volition (TP 8:283), one which does not go away even

when we routinely disregard it.41 “And just in this lies the paradox that the mere dignity of

humanity as rational nature, without any other end or advantage to be attained by it—hence

respect for a mere idea—is yet to serve as an inflexible precept of the will” (G 4:439)—an

41 I therefore disagree with Bielefeldt’s equation of humanity with autonomy: “In Kant’s ethics, moral
autonomy and human dignity… form one and the same normative idea” (1997, p. 539); “its normative
justification refers to the equal dignity of every human being as a morally autonomous subject” (p. 542). This
confuses Wille-as-capacity with Wille as the adequate (i.e. fully rational) exercise thereof, where the former
grounds our humanity but only the latter constitutes autonomy. It is not true that humanity is “one and the
same” with autonomous volition, much less that we have equal dignity because we are all equally morally
autonomous. If that were Kant’s view, it would follow that heteronomous agents have no dignity at all.
Nowhere does Kant even hint at such a thought. On the contrary, I suspect he would concur with Augustin’s
strong statement of human dignity to the effect that “even those perverse and drunken people who are ruined
by this greed are to be preferred to the material creation… not because of the merit of their sins, but because
of the dignity of their nature” (op. cit., Book III, §5, p. 81). This objection also applies to Riley’s equation of Wille
with autonomous volition (see p. 329n40).
Perhaps the same confusion between the basis of dignity and the conditions of autonomy leads
Hassner to say that, for Kant, “Men are not equal in dignity, but one has the duty to treat them as though they
were. The right of the individual to be treated as an equal or at least to see certain aspects of his dignity [?]
respected is not based on his being equal or respectable but on the duty to treat all men as equal and
respectable” (1987 [1963], p. 590). This is decidedly not Kant’s view, either. The Formula of Humanity is not
an “as-if” injunction. We ought to respect other people because they are in fact deserving of respect. Our
obligations of respect for others are rationally required by the fact of their dignity. What respect for another
actually requires of us in a particular case, is a different question, the answer to which depends on how this
person has exercised his or her humanity in deed. In principle, all that follows from our equal dignity is that “a
human being [is] beyond reproach (iusti), since before he performs any act affecting rights he has done no
wrong to anyone” (MM 6:238). See Pallikkathayil 2010 for an excellent discussion of what it means to treat
other people as ends in themselves and not merely as means.

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“inflexible precept,” Kant says: a norm that we may fail to live up to without forfeiting the

dignity of our humanity, though such failure will compromise the moral worth of our deeds.42

This understanding of the Willkür/Wille distinction and of the two sense of Wille is an

answer to critics who deny that “the power to set moral as well as nonmoral ends” lies at

“the heart of Kant’s moral theory.”43 Robert Pippin articulates this point of view: “It is hard

to see how the often banal and ordinary exercise of the freedom of choice alone is of the

requisite Kantian awe-inspiring dimensions. And how can a nonautonomous exercise of

Willkür be a “part” or “expression” of pure self-legislation or autonomy?”44 The answer is

quite simple, I think: “banal and ordinary” acts, even immoral ones, are all invariably

expressive of our Wille-as-capacity, not just of our Willkür. They are awe-inspiring indeed

because they express the ultimate source of our value as human agents. “[A] servant who is

punished for some great sin by being made to clean out the sewer lends dignity to the sewer

even by his own disgrace”—words Kant did not pen but would have doubtless subscribed

to.45 A defective or seemingly trivial use of our Wille nevertheless attests to our membership

in the “kingdom of ends” (G 4:433). Where Pippin sees banality, Kant sees proof of our

dignity.46

42 Because the argument for human dignity depends on our Wille as capacity , further, a Humean skeptic
rejects the very possibility of the Wille as rational self-determination, Kant takes empiricist theories of action
to task for lacking an adequate account of the value of human life (or rational agency in general): “empiricism
of practical reason” is committed to inclinations as sole movers of the will, but such inclinations “degrade
humanity when they are raised to the dignity of a supreme practical principle” (CPrR 5:71).
43 Pippin 2006, p. 426.
44 Op. cit., p. 427.
45 Augustine 1993 [391-395], Book III, §10, p. 90.
46 Katrin Flikschuh shares Pippin’s opinion. She argues against the “established tendency to conflate…
humanity as an end-in-itself with the—rather un-Kantian—conception of the intrinsic moral worth of
individuals as being endowed with capacity for choice [Willkür]… Kant is not asking that agents treat the
individuality of each person—that which sets each apart from the rest—as possessing intrinsic moral worth.
To the contrary, agents are to respect that which they share with all others—their humanity—as morally
sacred” (2010, p. 394). The key mistake common to Flikschuh’s and Pippin’s skepticism about the value of the
human capacity for choice is that they seem to think that it is separable from the capacity for rational self-

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Everything I have said thus far pertains to Kant’s subjective theory of freedom.

Freedom of choice (Willkür), freedom of will (Wille as capacity), and autonomy (Wille

adequately exercised) are all concerned with an agent’s volitional profile, with the reasons

for which he or she adopts a given end and makes it his or her own. These notions jointly

constitute the complex idea of “inner freedom” that Kant applies in the “Doctrine of Virtue”:

“two things are required for inner freedom: being one’s own master in a given case (animus

sui compos) [= freedom of choice], and ruling oneself (imperium in semetipsum [sic]), that is,

subduing one’s affects and governing one’s passions [= freedom of will exercised so as to

achieve moral freedom or autonomy]” (MM 6:407). The theory of “inner freedom” is

subjective in the sense that it can be spelled out and is fully intelligible without reference to

anyone or anything outside of an agent’s psyche. But there is another, objective dimension

of freedom that Kant expounds in the Metaphysics of Morals: the freedom to externalize our

maxims or intentions without subjection to the arbitrary interference of other agents with

whom we coexist in the physical world. This is Kant’s notion of “external” freedom, his

preferred term for the same republican idea of non-domination that Rousseau called “civil”

determination; if that were so, given that autonomy is a function of the adequate exercise of the latter, then
obviously the former could not be “awe-inspiring” for a Kantian. (After all, as Joseph Raz correctly claims, the
value of a capacity depends on the value of certain cases of its exercise [1986, p.371]). But as I have explained,
the heart of Kant’s rather original theory of human freedom is precisely that the power of choice (Willkür) is
always conjoined with, and never separable from, the capacity for rational self-determination (Wille). In a finite
rational agent, each and every action involves the exercise of both the “negative” and “positive” aspects of
freedom. For that reason, a seemingly petty act that appears only to display our capacity for choice is still
evidence of our intrinsic value as rational agents.
Anyhow, it is unclear how the requirement to respect humanity could mean anything other than to
“treat the individuality of each persos….as possessing intrinsic moral worth,” pace Flikschuch. I am afraid she
is here drawing a distinction without a difference. In the case of finite rational agents, humanity pervades every
aspect of our individuality; it is impossible for you to respect my humanity unless you respect me as a person,
tout court. What is common to us all (humanity) is practically inseparable from what is unique to each of us
(individuality).

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freedom. “External freedom” consists simply in an agent’s “independence from being

constrained by another’s choice” (MM 6:237).47

7.3 Dimensions of Freedom II: “External” Freedom

Kant often signals his commitment to a republican conception of political freedom by

emphasizing the abjection of servility, submissiveness, and slavery, the core contrast-cases

of freedom in the classical republican tradition: “Nothing can be more appalling than that the

action of one human stand under the will of another. Hence no abhorrence can be more

natural than that which a person has against servitude” (N&F Ri 68).48 More radically, almost

channeling Rousseau, Kant says of a people under “the despotism of mighty tyrants,” living

“in the most abject slavery mixed with all the vices of the crude condition,” that “it thereby

made itself unworthy of its own existence as a species destined to dominate the earth, not to

enjoy like cattle and to serve like slaves” (CB 8:120). Even in the world of education, “it

should mainly be noted that the discipline [imposed upon children] not be slavish” (LP

9:464); “breaking the child’s will” (LP 9:480) is inimical to the up-bringing of an individual

who is to be equipped for standing up for him or herself, for being truly sui iuris.

Servitude and slavery are here contrasted with the status of a person as it ought to be

affirmed in interpersonal relations. The sight of a dominated person is “appalling” precisely

47 Though Kant here uses Wille, Gregor is right to translate is as “choice” rather than “will” in this
particular case because Kant obviously means to say that my independence is compromised by what other
people do, regardless of why they do it. X dominates Y as a function of what X chooses to do (Freiheit der
Willkür); whether X exercises his or her Wille adequately (i.e. autonomously) or not in dominating Y, is
irrelevant to Y’s “external” freedom or independence.
48 On slavery, subjection, and servility as paradigms of republican unfreedom, see Pettit 1997, pp. 31-35;
on the Roman origins of this contrast and its influence in early modern thought, see Skinner 1998, pp. 36-47.

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because his or her social standing represents a capitis deminutio with respect to his or her

equal moral worth, to how he or she ought to be seen by others.49 For Kant, whoever counts

morally as a person ought to be for that reason equally independent in society: “the mania

for domination… is intrinsically unjust... because it is contrary to freedom under law, to

which everyone can lay claim” (A 7:273, emphasis added). Domination is therefore a breach

of civic equality as much as a violation of the value of “external” freedom as independence:

“no one living in a rightful condition of a commonwealth can fall from this equality otherwise

than by his own crime... for he cannot by means of any rightful deed (whether his own or

another’s) cease to be in rightful possession of himself and enter the class of domestic

animals” (TP 8:293).

A person who lives subject to the will of another is like a “domestic animal”: simply

unfree and no longer “his own master (sui iuris),” even if he “can be considered happy” in his

servility (MM 6:238).50 Happiness is immaterial because an agent’s volitional profile has no

49 I disagree with Williams’ contention that “It is not nature that makes us equal for Kant but the rule of
law” (2010, p. 369). Nature does make us equal from the moral point of view, by endowing us with the same
capacity to set ends for ourselves, our humanity (pace Hassner: see p. 330n41). Our legal status may fail to
reflect our moral equality and, to that extent, the rule of law may or may not “make us equal” in our juridical
relations to others. But the law ought to make us equal because, as a matter of fact, we are equal morally
speaking.
50 Kant understands “external” freedom as a kind of social status (Hodgson 2010, p. 795) constituted by
the enjoyment of certain protections or guarantees that can only exist under the rule of law (the subject of
Chapter 8.3); how one “feels” about such status is not central to the account of “external” freedom. In all of this
Kant is of one mind with Rousseau (see especially Chapter 4.3).
The historical origins of the freedom-status-law triad lies in the Roman idea of libertas as constitutive
of the juridical status of civitas (Pettit 1997, pp. 27-28, 32-36; du Plessis 2010 [1994], p. 87; Skinner 1998, pp.
36-47). For the Romans, libertas necessarily involved certain immunities or legal protections from other
people’s power, even from the power of the state itself. As those immunities became increasingly detached
from libertas in Imperial Rome, the idea of a civis liber became “but a title of courtesy” (Sherwin-White 1973, p.
178). For the most part, however, equal protection under the law was the mark of the libertas that was
coextensive with civitas Romana (Nicolet 1980, pp. 319-321). Private law protected citizens from each other,
but they also all enjoyed the ius provotationis ad populum as a safeguard against state power –against what I
called political domination in the context of Rousseau’s Republic of the General Will (Chapter 5). The Roman
citizen was entitled to appeal any sentence that involved “loss of life or liberty, corporal punishment or the
permanent loss of social and political rights of magistrates” (Mousourakis 2003, p. 145; cf. also Nicolet 1980,

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bearing on the extent of one’s “external” (un)freedom. Nor does it matter if the person under

whose arbitrary power I live happens to be very kind indeed. To be subject to the will of a

benevolent master is to be a servus all the same: “Whosoever is able to be happy only

according to another person’s choice (no matter how benevolent this other person may be)

rightly feels that he is unhappy. For what guarantee has he that his powerful fellow human

being’s judgment about his well-being will agree with his own?” (A 7:268). Kant’s point

should be familiar from the discussion of Rousseau’s “civil freedom”: what makes

domination so abhorrent from a moral point of view is another person’s arbitrary power to

interfere with my affairs. A dominating power is arbitrary not only in the sense of being

unpredictable or capricious, but also in the further sense that it is in no way constrained

structured so as to track the subservient party’s interests. Accordingly, Kant understands

“external” freedom as a kind of social status constituted by the enjoyment of certain

protections or guarantees that can only exist under the rule of law. How one “feels” about

such status is not central to the account of “external” freedom; what matters is the social fact

that one enjoys a protected sphere of action insulated from other people’s power of

interference, a sphere they cannot transgress with impunity.51

pp. 38-40, and Crook 1968 pp. 70-72). No magistrate’s imperium was unfettered when used against a Roman
citizen—not even against a civis sine suffragio.
51 Contemporary scholars are increasingly aware of Kant’s unequivocally republican conception of
political freedom (e.g., Ripstein 2009, pp. 30-39; Pettit 2013, pp. 176-177; Stilz 2009, pp. 37, 51 Hodgson 2010,
p. 792). Some, however, still miss the mark of the sort of freedom that is so central to Kant’s politics. Howard
Williams, for example, argues that “Kant is similar to Hobbes in thinking that the absence of external constraint
must play a part in our freedom but this is not its sole focus… Liberty is not simply a matter of excluding the
influence of others upon us but also concerns the appropriate inclusion of the influence of others upon us”
(2010, p. 366). Kant’s idea of political freedom is radically at odds with, by no means “similar to,” Hobbes’s.
For Hobbes, a person is free if and only if he or she is not actually being interfered with, in a strictly physical
sense (see Chapter 2.3). For Kant, as for Rousseau, a person is free if and only if nobody has the capacity to
arbitrarily interfere with his or her affairs with impunity (see Chapter 4.3). Actual interference is secondary
on Kant’s and Rousseau’s view, but for Hobbes it is all that matters in assessing the extent to a person’s freedom.
Moreover, Williams’ mention of “the appropriate inclusion of the influence of others upon us” is too broad: I
cannot help “influencing” others in doing what I do, but that fact by itself does not make any action of mine

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As will become apparent throughout Part III, I take Kant to be a remarkably consistent

philosopher—with one notable exception: his prejudiced refusal to critically examine the

place of women in society in light of his own account of external freedom as independence.

As I explain in Chapter 8.1, the moral entitlement to external freedom is a function of

“humanity” or the capacity for rational self-determination—a capacity every human being

possesses in equal measure. Kant nevertheless takes for granted that civil or juridical status

can, in the case of women, be detached from their equal standing as rational agents: “The

(natural or legal) incapacity of an otherwise sound human being to use his own

understanding in civil affairs is called immaturity… Women regardless of age is declared to

be immature in civil matters,” with the implication that they “cannot personally defend their

rights and pursue civil affairs for themselves” (A 7:208-209). Nothing in Kant’s philosophy,

nor in his conception of external freedom, warrants that conclusion. On the contrary, his

attempt at unearthing the alleged domestic power of women betrays their subjection to the

will of the male head of household: “Feminine ways are called weaknesses…, but reasonable

people see very well that they are just the levers women use for governing men and using

them for their own purposes” (A 7:303). This stereotype of female manipulation and

inconsistent with right (not even when the influence is harmful, as opposed to wrongful: see p. 397n59).
Williams’ thesis that “independence comes before liberty and equality” in Kant’s theory of politics (op. cit., p.
377) reflects his misunderstanding of the content and normative significance of external freedom, which he
equivocates with “independence” [Selbstständigkeit] as co-legislation. When Kant uses “independence” in that
narrower sense, he is referring to the political status that accrues to a citizen qua co-legislator (TP 8:290). But
this narrow idea of independence is not central to his account of legitimacy (as I argue in Chapter 9.2). Williams
moves back and forth between the two very different sense of “independence” (non-domination vs. co-
legislation) saying, for instance, that “The [independent] person should be his own master” (p. 372) and also
that “What marks our independence for Kant is our participation in the exercise of sovereign power through
the shaping of laws” (p. 373).
Halldenius echoes Williams’ mistake: “As a civil agent, I am free (independent) under positive law to
the extent [that] I am a co-legislator through my representatives so that the law that binds me emanates from
my own will” (2011, p. 177). As I argued in Part II, this is not even the right account of Rousseau’s Republic of
the General Will with all its emphasis on self-legislation; much less is it true to Kant’s comparatively soberer
theory of state legitimacy, centered as it is on a notion of “intendance” that is equivalent to non-domination.

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deception Kant tries to recast as a form of freedom: “when gallantry has become the fashion

and jealousy ridiculous (as never fails to happen in a time of luxury), the feminine character

reveals itself: by extending favors toward men, woman lays claim to freedom and, at the same

time, to the conquest of the entire male sex” (A 7:304-305). A sui generis freedom this must

be, which presupposes the indignity of ingratiation—the only recourse of a dominated

person whose only hope is to induce the master’s benevolence. Had Kant considered the

case strictly from the point of view of his own notion of external freedom, he should have

noticed that a form of “freedom” that depends on the “ability to please” (A 7:306) is

symptomatic of domination. Such spurious “freedom” is nothing but dependence and

servility in disguise, the opposite of a genuinely protected sphere of action from the other

people’s arbitrary interferences with one’s affairs. The “freedom” of women postulated by

Kant is an unwitting admission of their external unfreedom by his own standards. Kant’s

remarks about the social standing of women detract from the rigor of his application of an

otherwise sound conception of independence or non-domination.52

The dimensions of “external” and “inner” freedom differ in three main respects. First,

these dimensions of freedom have a different scope of application, a different constituency

52 Kant was not alone in failing to extend the ideal of non-domination to women for no defensible reason.
Here is Rousseau’s own, similarly failed attempt to make the domination of women pass for a sort of
imperceptible power over men: “It is by means of this superiority in talent that she keeps herself his equal and
that she governs him while obeying him” (E V, p. 371); “There is quite a difference between arrogating to oneself
the right to command and governing him who commands. Woman’s empire is an empire of gentleness, skill,
and obligingness; her orders are caresses, her threats are tears. She ought to reign in the home as a minister
does in the state—by getting herself commanded to do what she wants to do” (E V, p. 408).

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so to speak. While the doctrine and requirements of “internal” freedom apply to all rational

agents alike, those of “external” freedom apply exclusively to finite rational agents, that is, to

rational agents who exist phenomenally in space and time. Because “holy” beings (G 4:439,

MM 6:379) only exist noumenally, as opposed to phenomenally, there is no intelligible sense

in which they could possibly be externally free or unfree. It is metaphysically impossible for

such beings to enter into relations of domination. They are, one might say, externally non-

free.53 By contrast, external freedom is of the utmost importance to any finite rational agent

who lives alongside others in a common world structured by the metaphysics of time and

space. In Kantian terms, finitude (temporal as well as spatial) is the transcendental condition

or condition of possibility of “external” (un)freedom. If “inner freedom” refers to the way in

which we arrive at a given maxim of action (without reference to its externalization as deed),

“external” freedom concerns “only the external use of choice” (MM 6:214)—but “the external

use of choice” is only possible for agents who exist in a phenomenal world structured by the

metaphysics of space and time and upon which they can intervene through their deeds.

The second important difference concerns the desiderata of any given action’s

consistency with the demands of “external” versus “inner” freedom. As I pointed out above,

53 In addition to being externally non-free, “pure” wills differ from human agents in the way they
experience the moral law. The doctrine of “inner” freedom is manifest to them in a phenomenologically
peculiar way because, being outside the space-time continuum, they are not burdened by the natural (non-
rational) incentives that afflict finite rational agents. “Pure” wills do not have subjective motivational sets (see
p. 320n19). Hence there is no “necessitation” or sense of obligation attached to the moral law as they
experience it: “A perfectly good will would, therefore, equally stand under objective laws (of the good), but it
could not on this account of represented as necessitated to actions in conformity with the law since of itself, by
its subjective constitution, it can be determined only through the representation of the good. Hence no
imperatives hold for the divine will and in general for a holy will: the “ought” is out of place here, because
volition is of itself necessarily in accord with the law” (G 4:414; cf. CPrR 5:32-33, 82).
Although not quite with Kant’s philosophical sophistication, Rousseau’s Savoyard Vicar had made a
similar observation, with the veiled implication that holy wills are pure at the expense of being morally
meritorious: “To what perversity would pure spirits be susceptible? Needing nothing, why would they be
wicked? …they would be able to will only the good” (E IV, p. 284).

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we can ascertain whether an agent is rationally self-legislating or autonomous by simply

inspecting his or her volitional profile. That we have Freiheit der Willkür and Wille-as-

capacity are facts about our nature as rational agents; and whether we display the former

while adequately exercising the latter in arriving at a given maxim or intention, depends on

a series of fact about the inner sanctum of the will. In this lies the radical “subjectivity” of

“inner” freedom, for not even introspection suffices to settle whether I have willed

autonomously in any given case or not.54 By contrast, Kant’s “external” freedom, just like

Rousseau’s “civil freedom,” is objective in that it obtains as a function of certain observable

facts about the shared, interpersonal world. The desiderata for ascriptions of external

(un)freedom abstract from the agent’s volitional profile altogether and can be fully

ascertained by reference to verifiable social facts about the agent’s interpersonal standing in

the world. I am externally free just in case nobody else is in a position to arbitrarily interfere

with my actions, at least not with impunity.55

54 Kant’s Two Standpoints Hypothesis (see p. 318n17) means, very roughly, that the fact of reflective
distance is phenomenologically accessible—something I can experience in my own deliberations, in the “inner
sense” of introspection—, whereas the power of rational self-determination manifests the “noumenal”
dimension of the self. Since the doctrine of Transcendental Idealism precludes any experience of the noumenal
realm, my “empirical self” (the self of reflection or introspection) has no access to my “noumenal self”:
“consciousness of oneself (apperceptio) can be divided into that of reflection and that of apprehension. The
first is a consciousness of understanding, pure apperception; the second a consciousness of inner sense,
empirical apperception” (A 7:134n). This is not to say that I am actually two different persons, for “The human
‘I’ is indeed twofold according to form (manner of representation), but not according to matter (content)”
(ibid.). The important implication of this view in the present context is that the truth about my “noumenal” acts
of self-determination (whether I was truly autonomous in adopting this or that maxim) is in principle
inaccessible to my empirical self-consciousness. It is a consequence of our finite nature that “more often [than
not] we ourselves are a play of obscure representations” (A 7:136). For Kant, “agents are opaque to themselves:
they can never be certain that Willkür is indeed in inner conformity with Wille” (Flikschuh 2010, p. 386).
55 Katrin Flikschuh summarizes this important point very clearly: “Kant defines the concept of Right as
specifying a law-governed formal relation between the Willkür of one and that of another… The intrapersonal
Willkür/Wille relation is immaterial with regard to lawful external freedom because the latter concerns the
interpersonal relation between the powers of choice of two or more agents” (2010, pp. 386-387). Contrast this
view with the erroneous assimilation of “external” freedom to the requirements of autonomy: “Freedom is the
founding principle of the republic since the citizens, by making law that binds them, remain literally
autonomous” (Halldenius 2011, p. 176). The latter view is not Kant’s, nor even Rousseau’s as I interpret him
(see Chapter 4.3).

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The irrelevance of subjective attitudes to a person’s “external” (un)freedom is closely

related to third salient difference between Kant’s two dimensions of freedom. The demands

of “inner” freedom and those of “external” freedom have a different kind of normativity. To

act according to the demands of “inner” freedom, that is, autonomously, is a moral obligation.

But to act according to the demands of “external” freedom is not only morally obligatory, but

also something others can coercively exact of us. In Kantian terms, only the moral demands

associated with external freedom are also “rights” or authorizations to coerce. 56 Now it is

metaphysically impossible to coerce someone into being autonomous, as (threats of the use

of) force cannot possibly have that kind of effect in the inner sanctum of the will. But if

obligations of “external” freedom are coercible, it follows that they can be discharged by

simply behaving in the required way, no matter the reason. (And vice-versa: it is only

because obligations of “external” freedom are entirely behavior that one can be coerced into

complying with them.) Why I choose to behave consistently with “external” freedom is

immaterial to my moral accounting on the column of external freedom, so to speak. To the

extent that every action-description includes the agent’s reasons or motives (i.e., the

“maxim”), then strictly speaking obligations of “external” freedom do not require that I act

in any given way; they only require behaviors or deeds which I could execute for any reason

whatever. The demands of external freedom come in the form of behavior-descriptions, and

those are multiply realizable at the more fine-grained level of action-descriptions. The

second and third differences between the two dimensions of freedom reinforce and explain

56 The distinctive normativity of obligations of “external” freedom is taken up in Chapter 8.2. One caveat:
saying that each dimension of freedom corresponds to a different “kind” of normativity should not be taken to
mean that the demands of one dimension can conflict with those of the other. At bottom, there is only one sort
of normativity in the Kantian world: rational normativity. The fundamental unity of all normative domains
makes their demands commensurable and explains Kant’s eagerness to show that they form a coherent system.

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the irrelevance of motives from the point of view of “right,” Kant’s preferred name for the

domain of normativity grounded in the demands of “external” freedom.

Kant makes these points by speaking of the distinction between morality and right as

two distinct forms of “lawgiving.” Qua lawgiving, both dimensions of freedom equally

represent “an action that is to be done as objectively necessary, that is, [as] a duty,” where

the “action” is in fact a behavior-description that does not yet include the “incentive, which

connects a ground for determining choice to this action subjectively with the representation

of the law” (MM 6:218). The moral and political kinds of “lawgiving can therefore be

distinguished with respect to the incentive.” Ethical duties involve acting because the law is

rationally commanding, which is to say that such duties represent an action as necessary

under a description that includes acting on the incentive of “respect for law” (G 4:401n). Not

so with juridical duties or duties of right, which I can satisfactorily discharge for any reason

I choose. Duties of right do “not include the incentive of duty in the law and so [admit] of an

incentive other than the idea of duty itself” (MM 6:219). 57 It is only to be expected that the

test for the “rightness” of an action does not concern itself with the agent’s motives: “Any

action is right if it can coexist with everyone’s freedom in accordance with a universal law,

or if on its maxim the freedom of choice [Freiheit der Willkür] of each can coexists with

57 Kant goes on to say that “this incentive which is something other than the idea of a duty must be drawn
from pathological determining grounds of choice” (MM 6:619). These “pathological determining grounds”
(what I have called an agent’s subjective motivational set) and “the idea of duty itself” or “respect for law” (two
equivalent expressions that are identical with pure practical reason) exhaust the incentives on which a finite
will may act. One must be careful not to infer from Kant’s remark that a juridical duty requires that I discharge
it on pathological or heteronomous grounds. All Kant means to say is that as far as the dimension of external
freedom is concerned, the volitional (and so moral) quality of my acts of compliance is irrelevant. It is only for
purposes of illustration that he tends to explicate duties of right by reference to “pathological” motives for
compliance, so as to emphasize the difference between the two normative domains of ethics and right.

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everyone’s freedom in accordance with a universal law” (MM 6:230).58 Thus, the normative

domains of right and ethics track the dimensions of external and inner freedom, respectively:

“The freedom to which [juridical] laws refer can be only freedom in the external use of choice,

but the freedom to which [ethical laws] refer is freedom in both the external and the internal

use of choice” (MM 6:214).

To summarize the argument so far: (i) every human being is free qua reflectively

distant from his or her subjective motivational set—call this “freedom of choice”; (ii) every

human being is free qua capable of autonomous volition or rational self-determination—call

this “freedom of will”; but (iii) only human beings who act morally, that is, on the categorical

imperative, are also free qua (actually) autonomous—call this “moral freedom.”59 The

attribute that constitutes our humanity, and so grounds our dignity, is (ii) freedom of will,

but we only live up to the constitutive ideal of our nature as rational agents by also becoming

(iii) morally free or autonomous. Freedom of choice, freedom of will, and moral freedom

jointly constitute Kant’s subjective theory of freedom, or the doctrine of “inner” freedom. But

Kant also notices that finite rational agents who live in time and space alongside others can

enjoy or lack (iv) freedom as independence or non-domination, regardless of how they come

to adopt the maxims on which they act. This is Kant’s republican concept of “external”

freedom.

58 Kant aptly uses Freiheit der Willkür in this crucial passage to signal de irrelevance of autonomy (the
adequate use of Wille) to the juridical criterion of an action’s rightness. However, he obviously means more
than the “negative” conception of freedom or the fact of reflective distance: he means “freedom of choice as
externalized in the world.” This seemingly subtle but actually crucial difference is discussed at length in
Chapter 8.1.
59 If I am right to claim that Wilkür and Wille must always be present for an agent to qualify as free (see
Chapter 7.2), then (i) freedom of choice and (ii) freedom of will entail one another. Admittedly, Kant insists
that the epistemic warrant for (ii) freedom of will is somewhat peculiar, for it can be neither proven nor refuted
by theoretical reason. We cannot conclusively say that we are in fact (metaphysically) free, nor can we
conclusively deny it and, in fact, are morally required to believe it (CPrR 5:132-133).

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With these distinctions in mind, we can disambiguate Kant’s seemingly simple

answer to the central question of the Metaphysics of Morals. When he says that the moral

law requires that we act in accordance with freedom, he is in fact saying two things at once.

With regard to inner freedom, we are commanded by reason to exercise our Willkür and our

Wille so as to act on intelligible principles that are also maximally rational, that is, consistent

with the categorical imperative. We are asked, in other words, to exercise our capacity for

rational self-determination adequately in order to be autonomous, hence fully moral, agents.

And as for external freedom, we are to behave in such a way that we can all be consistently

independent from the arbitrary will of one another in externalizing our intentions or maxims

as deeds in our shared, physical world.

7.4 The Morality of Politics

A finite rational agent’s “external” freedom can be assessed without reference to the

underlying maxims of action or the reasons why those maxims are adopted. I am free in the

“external” sense if and only if my capacity to externalize an intention as deed in the world is

independent from the will of another—independent, that is, from any arbitrary interferences

from an intentional source. This objective, inherently interpersonal form of freedom is the

normative principle on which Kant’s entire political philosophy rests. It constitutes the “only

original right belonging to every man by virtue of his humanity”—the right to act freely

“insofar as [that freedom] can coexist with the freedom of every other in accordance with a

universal law” (MM 6:237). But there is a conspicuous philosophical gap between

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postulating that there is such a thing as “external” freedom and insisting that people have a

right to it.

Indeed, I have explained what external freedom is—to wit, the capacity to externalize

one’s intentions as deeds in the world independently of other people’s arbitrary power of

interference. But this is not yet an account of why this capacity matters, let alone of what

specifically we ought to do to live in accordance with it. Even though Kant often writes as if

the value of external freedom was obvious, surely there must be an argument for its

normative significance. Before turning to the political implications of Kant’s commitment to

“external” freedom as independence, we must first try to understand why this dimension of

freedom carries enough normative weight to ground an entire political philosophy.

Kant does not explicitly defend the value of “external” freedom. But I think a

compelling case can be made on his behalf by focusing on the moral implications of the

Formula of Humanity, one of the four formulations of the categorical imperative he presents

in the Groundwork.60 As I explain in detail in Chapter 8.1, the moral foundations of Kant’s

political project are built around the normative implications of the Formula of Humanity as

they apply to finite rational agents. In terms of the analysis in sections 7.2-3, the view I

advance is this: although clearly distinct, the dimensions of “external” and “internal” freedom

are deeply related. While the concept of “external” freedom can be spelled out without

reference to the doctrine of “inner” freedom (which encompasses the Formula of Humanity),

Kant’s commitment to the value of “external” freedom only makes sense against the

background of that doctrine.61

60 See p. 326n33.
61 And though I do not argue for this further idea, the requirements of “external” freedom in turn give
content to the demands of “inner” freedom because respecting other as ends in themselves and not treating

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The moral obligation to respect “humanity,” coupled with the transcendental fact of

our existence in time and space, jointly justify (i) the normative status of external freedom

and consequently the “innate right” to independence, as well as (ii) the first and most

fundamental duty of right, that of bringing about a civil condition. Respect for humanity

translates into respect for an agent’s sphere of “external” freedom in virtue of the

transcendental fact of our existence in time; and respect for our individual spheres of

“external” freedom translates into the categorical duty to institute a civil condition in virtue

of the transcendental fact of our existence in space. Kant’s philosophy of right is not a

straight-forward derivation from his moral philosophy, but rather a specific application of

its metaphysical principles to the special case of finite rational beings who exist

phenomenally in space and time.

For ease of exposition, I will address Kant’s argument in two parts. The first (Chapter

8.1) explains how the Formula of Humanity justifies a moral entitlement to external freedom.

The second (Chapter 8.2) explains why this moral entitlement is also an innate right which

in turn justifies the duty to bring about a civil condition. Though some of the details will

seem obscure at this point, the complexity of Kant’s argument merits a preliminary

statement of the full picture of the interpretation I propose:

Part I: The moral argument for the moral entitlement to external freedom

1. The Absolute Value of Humanity. “Humanity,” or the Wille-as-capacity, is the

unconditional source of all moral value, hence valuable in itself and absolutely. To
say that humanity is valuable in that way amounts to saying that every rational being
stands under an obligation to respect humanity as instantiated in every other such
being.

them as mere means involves respecting their acquired rights. For an excellent argument in defense of this
point, see Pallikkathayil 2010 (pp. 129-132, 141-143).

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2. The Transcendental Fact of Temporal Finitude. Human beings are finite rational
beings in the sense that they exist (phenomenally) in space and time. Qua existing in
time, we can never be said to have adopted a given maxim as an intention until we
actually begin to act on that maxim. Since humanity is the capacity to adopt a maxim
on intelligible grounds it follows that our exercise of said capacity necessarily
involves being able to externalize our intentions in the physical world as deeds.

 Thus, respect for the humanity of temporally finite beings entails a commitment to
respecting their individual spheres of external freedom, regardless of the moral
quality of the maxims on which they act in any given case. This is to say that finite
rational agents have a moral entitlement to their external freedom.

Part II: The moral argument for the Innate Right to Freedom and the necessity
of states

1. The Reciprocal Coercibility of Rights. Qua existing in space, finite rational agents are
intrinsically liable to entering into relations of domination that can compromise their
external freedom. Because the moral entitlements associated with external freedom
would be inert unless the boundaries of an agent’s freedom can be defended from
possible physical interferences, such entitlements are eo ipso authorizations to coerce
others. This authorization to coerce others in the name of one’s external freedom is
what Kant’s innate right to (external) freedom. Because each agent’s Innate Right to
Freedom carries equal normative weight, the coercibility of rights is reciprocal. This
is the Universal Principle of Right.

2. The Proximity Condition. Qua existing in a bounded physical space (the globus
terraqueus), finite rational agents cannot reliably prevent relations of domination or
external unfreedom by avoiding crossing each other’s paths. Hence, given the
opportunity, they ought to create the institutions necessary to guarantee that each
will enjoy a secure sphere of external freedom. From each agent’s point of view, the
creation of such institutions is both a moral obligation and a (coercible) right.

3. The Extent of Coercible Rights-Claims. For finite rational beings who exist in space,
having the adequate enjoyment of external freedom involves a right to bodily
sovereignty and access to “acquired,” i.e., conventionally defined or politically
constructed, rights, notably private property rights. The innate right to (external)
freedom therefore requires the possibility of acquired rights.

4. The Need for Omnilateral Coercion. Acquired rights in general (and property rights in
particular) are only possible if there is an “omnilateral will” capable of (i) fixing the
boundaries of such rights-claims and (ii) enforcing them consistently with everyone’s
external freedom. The idea of an “omnilateral will” specifies the kind of institutions
necessary for every finite rational agent to enjoy a secure domain of external freedom.

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 Therefore, the Innate Right to Freedom categorically commands that we bring about
a civil condition. It is a moral duty among finite rational beings like us to institute a
state with power sufficient to settle through positive law, adjudicate, and enforce the
boundaries of our individual spheres of external freedom.

This outline offers a glimpse of how I interpret the moral foundations of Kant’s

political philosophy in general and of his republican conception of political freedom in

particular. Before delving into the details, I should admit that this approach to the relation

between Kant’s ethics and his politics is by no means uncontroversial. In fact, some scholars

claim that there is a sharp divide between the two forms of “lawgiving” in Kant’s practical

philosophy. Allen Wood, for instance, argues that “Kant draws a sharp distinction between

“right” and “ethics”—that is, between the sphere of normative concepts and activities

concerned with the state and coercive powers and the sphere concerned with the duties of

individuals that are to remain externally uncoerced and wholly free of legal or state power

and interference.”62 But on the view I propose, this cannot be right. Of course, the domains

of right and virtue are normatively distinct not only because an agent’s volitional profile is

immaterial to his or her external (un)freedom, but also because duties of right are alone

“authorizations to coerce,” i.e. enforceable rights. The problem for Wood’s statement is that

it fails to heed Arthur Ripstein’s apt warning that “the independence of right from the full

package of Kantian morality must not be purchased at too high a price.”63 Absent clear moral

62 Wood 2008, p. 193. Elsewhere, Wood does suggests (rightly, to my mind) that humanity underwrites
these two allegedly separate domains of normativity: “Right and ethics constitute separate “legislations”… –
that is, separate system of duties, each with its own distinctive fundamental principle, expressing the worth of
humanity in a different way” (op. cit., 161). It seems to me that Wood fails to follow the thread of Kant’s idea of
humanity all the way to the Innate Right to Freedom and the Universal Principle of Right precisely because he
lacks an account of how the requirements of respect for humanity are mediated by the transcendental fact of
human finitude. Without the latter premise, it is unclear why respect for humanity entails a commitment to
valuing and respecting one’s own as much as everyone else’s external freedom.
63 Ripstein 2009, p. 357.

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grounds for the value of external freedom (and so for the Innate Right to Freedom as well as

the Universal Principle of Right), why should the distinctively political demands of

independence or non-domination have any grip on a Kantian agent? Why should they matter

to a Kantian? Wood’s strict separation would have a hard time explaining why our duties of

right—what we ought to do in accordance with the demands of external freedom—are also

duties of virtue or morality.

The passage that seems to lend the most support to this “separationist”64

interpretation is Kant’s contention that “The supreme principle of right [i.e., the Universal

Principle of Right] is therefore an analytic proposition. But the principle of the doctrine of

virtue goes beyond the concept of outer freedom and connects with it, in accordance with

universal laws, an end that it makes a duty. This principle is therefore synthetic” (MM 6:396).

If the Universal Principle of Right is “analytic”, one might think that it cannot depend on the

moral doctrine that supports an independent, “synthetic” first principle of virtue. How can

one and the same moral doctrine issue in two principles with such different epistemic

characteristics?65 Moreover, if the Universal Principle of Right is analytic, does it not stand

64 I borrow the label from Pippin 2006.

65 Analyticity is a relation that obtains between the subject-concept and predicate of a judgment, such
that the judgement in question simply uncovers information that is already contained in the subject-concept:
“Either the predicate B belongs to the subject A as something that is (covertly) contained in this concept A; or
B lies entirely outside the concept A, though to be sure it stands in connection with it. In the first case I call the
judgment analytic, in the second case synthetic” (CPR A6/B10). Analytic judgments say nothing new about the
subject-concept, they add no “cognitions” in Kant’s sense, and so are merely “judgments of clarification,”
whereas synthetic judgments are “judgments of amplification” (CPR A7/B11). In a synthetic judgment, “the
predicate is something entirely different from that which I think in the mere concept of” the subject (ibid.).
The analytic/synthetic distinction concerns the subject-predicate relation in a judgment and should
not be confused with the a priori/a posteriori distinction, which concerns the epistemic credentials or warrant
for belief in a given judgment. A judgment is a priori just in case it is grounded in pure reason alone, “absolutely
independently of all experience” (CPR B3): “For if one removes from our experiences everything that belongs
to the senses, there still remain certain original concepts and the judgments generated from them, which must
have arisen entirely a priori, independently of experience” (CPR A2/B5). A judgment is a posteriori in case the
predicate can be attributed to the subject in virtue of actual, sensible experience.
Though there may be analytic judgment about concepts derived from experience (e.g., “All bachelors are
unmarried”), there cannot be for Kant analytic a posteriori judgements—i.e., judgments that add no new

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on its own ground, without the need to find support in an independent doctrine of moral

philosophy? The Universal Principle of Right is analytic because it simply “unpacks” the

concept of external freedom. It add no new cognitions to the idea of external freedom in

stipulating that it is universally co-exercisable only if “a hindering of the hindrances to

freedom” is permitted (MM 6:396). But whence the concept of external freedom itself?

Whence the value attributed to external freedom? The analyticity of the Universal Principle

of Right simply refers to the fact that it follows directly, without further premises, from the

concept of external freedom as captured by the Innate Right to Freedom.66 Nowhere does

Kant suggest that either the Universal Principle of Right or even the Innate Right to Freedom

have an axiomatic status in his political philosophy; the former follows analytically from the

latter, which in turn rest on an openly moral argument for the value of external freedom and

the obligation to respect it equally in every finite agent in whom the property of “humanity”

is instantiated.67

cognitions and yet require actual, sensible experience for the attribution of the predicate to the subject. On the
other hand, synthetic a priori are possible—the conditions for their possibility are the subject matter the First
Critique. As Kant puts it, the possibility of synthetic a priori judgments “the real problem of pure reason” (CPR
B19). In sum: there being no analytic a posteriori judgments, analyticity entails “a priority” (but not vice versa)
and “a posteriority” entails syntheticity (but not vice versa). For a helpful discussion of Kant’s typology of
judgments, see Gardner 1999, pp. 51-63.
66 For a similar view as regards the Universal Principle of Right, see Ripstein 2009, pp. 357-358.
67 Robert Pippin also objects to Wood’s view, but his own reading of Kant comes dangerously close to
being just another form of “separationism.” According to Pippin, the right view of the relation between ethics
and right in Kant is that moral philosophy supplies the rationale for the “postulate of practical reason with
regard to [acquired] rights” (MM 6:250), which accounts for “the unacceptability to free rational beings of res
nullius… and the claim that the state or the public rule of law is the “only” way… to ensure such intelligible
possession” (2006, pp. 428-429). This is right as far as it goes, but inadequate nonetheless. For starters, it is
unclear what is distinctively “moral” about the rationale for the juridical postulate of private property. As
Pippin explains, the problem with res nullius is that it amounts to “accepting a restriction [on external
freedom]… that there is no reason, given the sort of being we are, for us to accept” (p. 431). But that is only a
moral case against res nullius on the assumption that there is an argument for the moral priority or significance
of external freedom. And this Pippin does not provide such an argument. As he presents it, Pippin’s
interpretation is open to the same objections I raise against Wood’s: neither can explain the moral force of our
duties of right.

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On the other end of the interpretive spectrum, some scholars contend that there is a

clear moral basis for Kant’s “first principles” of right in the sense that they somehow promote

or advance humanity’s moralization. Kantian politics is morally significant because it is

instrumental to the achievement of autonomy or moral freedom. Thomas Pogge writes that

“Kant might argue that in the absence of secure domains of external freedom we could not

develop our moral dispositions and hence not achieve even inner freedom (autonomy) and

moral worth…. The latter theory [of the Metaphysics of Morals], is committed to the claim

that without justice, presupposing effective juridical laws, there would be no morality at all,

and human life on earth would lose its value.”68 Gunar Beck argues in a similar vein that

Kant’s “[p]olitics is ethically sanctioned only to the extent to which it furthers or makes at

least possible the moral self-perfection of individuals.”69 And like Pogge, Beck thinks that

As I explain in Chapter 8.2, my account of the moral argument for the Innate Right to Freedom and the Universal
Principle of Right also justifies, and more transparently in my view, Kant’s juridical postulate of the possibility
of private property.
68 Pogge 1988, p. 412.
69 Beck 1999, p. 223. Beck offers this teleological reconstruction of the ethics-right relation as an
alternative to the “autonomy interpretation,” according to which the Innate Right to Freedom is a necessary
condition for individual autonomy (e.g., “Kant’s political theory… is derived from his idea of freedom and from
the autonomy of the free rational being,” Reiss 1956, p 180). Beck is right to reject such views because it is
humanity as the capacity for autonomy, not autonomy as such, that drives the argument for the Innate Right to
Freedom. But Beck’s own reading of Kant comes dangerously close to the “autonomy interpretation” he
criticizes.
At one point Beck tries to differentiate both views by de-emphasizing the moral character of the “self-
perfection” involved in his teleological reconstruction, insisting that external freedom is a necessary condition
“for the development of all those ‘natural capacities’, ‘powers’, and ‘talents’” which are “directed towards the
use of [man’s] reason… Kant is concerned with the social, legal, and political presuppositions of man’s
perfection not as a moral but as a natural being” (op. cit., p. 228). However, this de-moralization of the telos of
self-perfection is to little avail, as Kant’s argument for the value of self-perfection and the duty to cultivate one’s
natural talents is, unsurprisingly, an openly moral one: “Nothing at all can be… absolutely good except a good
will. Everything else is either mediately good or good only under a restricting condition… Talents are very
good as means; but this ultimately comes down to what will the subject has for the use of these talents. Every
type of perfection in the highest being: eternity, omnipotence, omniprescence, is in itself sublime and terrifying
as long as a good will to use these perfections well is lacking” (N&F 19:194-195). The moral justification for
the injunction to cultivating and develop one’s natural talents is a recurrent theme in Kant’s work: “We are
cultivated in a high degree by art and science. We are civilized, perhaps to the point of being overburdened, by
all sorts of social decorum and propriety. But very much is still lacking before we can be held to be already
moralized” (IUH 8:26; cf. also A 7:324-325).

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this argument comes from the “substantive ethic” of the Metaphysics of Morals as opposed to

the “formalistic ethic” of the Groundwork: “Natural self-development thus, for Kant, is a

necessary means in our pursuit of virtue—a position radically at odds with that of the

Groundwork.”70 Now this teleological account of the relation between politics and morality

is seriously mistaken. For starters, Kant is inimical to teleological moral arguments in

general, and rightly so to the extent that they tend to go hand-in-hand with consequentialist

accounts of what is the morally right thing to do.71 Indeed, if one follows the thread of Beck’s

and Pogge’s arguments, it seems that acting on my duties of right is morally required insofar

as, and only to the extent that, doing so actually contributes to bringing about the

development of our moral capacities. When the criterion of rightness is a (future) state of

affairs that one must causally promote or bring about, it is only natural to infer that the

correct decision procedure in ethics is the evaluation of a given action’s probability of

actually contributing to bringing about the desired state of affairs.72 Yet Kant never says

anything of the sort. In fact, he argues exactly the opposite: “A good will is not good because

of what it effects or accomplishes, because of its fitness to attain some proposed end, but

only because of its volition, that is, it is good in itself… Usefulness or fruitfulness can neither

add anything to this worth nor take anything away from it” (G 4:394; cf. CPrR 5:68).

70 Op. cit., p. 230.

71 The close connection between teleological conceptions of (moral) value and consequentialist views
about morally right action is well explained by Thomas Scanlon: “What distinguishes teleological views is not
the elements of a state of affairs that they take to contribute to its intrinsic value…, but rather the idea that it is
only states of affairs that have value. If actions have intrinsic value, therefore, it is as components of states of
affairs—as things that occur, and that it is good (or bad) to have occur. To be (intrinsically) valuable, on such
a view, is to be “to be promoted”… It is not surprising that a purely teleological conception of value should be
held by people who also accepts a consequentialist account of morality… If rightness is a matter of promoting
the good, then the good must be the kind of thing that is “to be promoted”.” (2000, pp. 80-81).
72 For the distinction between a criterion of rightness and a decision procedure, see Railton 1984, esp.
pp. 149-150, 155-156.

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Moreover, the kind of causal connection between duties of right and the perfection of our

moral capacities postulated by the teleological approach can only issue in what Kant calls

“hypothetical imperatives,” all of which “represent the practical necessity of a possible action

as a means to achieving something else that one wills” (G 4:414, emphasis added). But duties

of right, and in fact all moral duties, command categorically rather than hypothetically: the

obligation to act on them never depends on empirically postulated causal connections

between an act and some state of affairs that it intends to promote or bring about. Causal

connections of that sort are irreducibly probabilistic, like any other empirical conjecture, and

they can’t possibly ground a Kantian duty of right or virtue.

Furthermore, it is not true, as Pogge claims, that without “effective juridical laws,

there would be no morality at all, and human life on earth would lose its value.” To be sure,

failure to implement a system of laws is tantamount to “wrong in the highest degree” (TP

8:301), but this is not equivalent to the disappearance of morality or the loss of the value of

human life. As I explained in section 7.2, the locus of the value of human life is “humanity” or

the Wille-as-capacity, which is never extinguished in a rational agent no matter how

inadequately (i.e., heteronomously) exercised.73 For as long as there are rational creatures

in the world, there will continue to be valuable human life and morality, too. The only way

to wipe the world clean of either is to exterminate rational nature altogether. Nothing quite

so drastic obtains because a group of human beings fails to erect a system of political and

legal institutions to regulate their affairs.

The Beck-Pogge teleological view of the relation between Kant’s ethics and right is

supposed to draw some support from the alleged novelty of the “substantive” ideas of his

73 See p. 329n39 for an important qualification on this point.

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later moral writings. But as I read Kant, this is an exaggeration, and a misleading one at that.

There is doubtless a shift in emphasis between the Groundwork and the Metaphysics of

Morals. Whereas the former focuses on the “form” of moral maxims (their law-likeness), the

latter highlights their “matter” (the ends pursued by them). But a difference in emphasis is

just that, not a substantive revision. The Groundwork also has a doctrine of ends (e.g., in the

Formula of Humanity and the Formula of the Kingdom of Ends) and the Metaphysics of Morals

never drops the law-likeness requirement for moral maxims, even if the phrase “categorical

imperative” is seldom used in that text. This shift is easily explained by the different roles

each of these works is meant to play in the overall architecture of Kant’s practical philosophy.

While the Groundwork lays down the first principles of morality as applicable to any and all

rational agents, the Metaphysics of Morals is narrowly concerned with the application of

those principles to the special case of finite rational agents. It is only because we are finite

that we must learn to be moral and acquire the relevant capacities to do what duty

commands on a reliable basis; since the ideas of cultivation and moralization do not apply to

pure rational agents, it is hardly surprising that they play no role in the argument of the

Groundwork. At any rate, the fact remains that the Groundwork already argues for the moral

duty to develop one’s natural talents: “Because we also regard enlarging our talents as a

duty…” (G 4:401n). Kant even makes the cultivation of one’s talents an example of the

“contradiction in the will” application of the allegedly “formalistic” Formula of Universal

Law.74

74 “A third [man] finds himself a talent that by means of some cultivation could make him a human being
useful for all sorts of purposes… But he still asks himself whether his maxim of neglecting his natural gifts… is
also consistent with what one calls duty. He now sees that a nature could indeed always subsist with such a
universal law… only he cannot possibly will that this become a universal law or be put in us as such by means
of natural instinct. For, as a rational being, he necessarily wills that all the capacities in him be developed, since
they serve him and are given to him for all sorts of possible purposes” (G 4:422-423)

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It might appear that the contrast between Kant’s early works and the Metaphysics of

Morals is a lot stronger than I have allowed, since the concept of “external” freedom plays no

salient role in the former. But again, this is only to be expected given the structure of Kant’s

practical philosophy. The Groundwork makes no mention of this interpersonal dimension of

freedom because its principles pertain to all rational agents as such, and only the dimension

of “inner” freedom has such a universal scope. The job of the Groundwork as a “metaphysics

of morals” is “to examine the idea of the principles of a possible pure will and not the actions

and conditions of human volition generally” (G 4:390). The theses of the Groundwork (and,

for that matter, those of the Second Critique) equally apply to “holy” beings (G 4:439, MM

6:379) who have no phenomenal existence. Yet the dimension of “external” freedom does

not. Only finite rational agents are can be externally (un)free. Consequently, “external”

freedom belongs in the second part of Kant’s moral philosophy, the application of

metaphysical first principles to the case of finite rational agents such as human beings. I see

no reason to concur with Pogge’s assessment that “the position Kant developed in the

1790s… is in fact quite different from, and also more successful than, the rudimentary

account in the Groundwork.”75 It is not only unsurprising, but also consistent with the

architecture of his practical philosophy, for Kant to develop his republican idea of political

freedom in a Metaphysics of Morals, not in the Groundwork or the Second Critique.76 The

Pogge-Beck hypothesis of an alleged revision of Kant’s early views by the time he wrote the

75 Pogge 1988, p. 407. Pogge fails to take notice of the fact that the idea of external freedom is already in
Kant’s work as early as the first edition of the First Critique (1781): “A constitution providing for the greatest
human freedom according to laws that permit the freedom of each to exist together with that of others
(not one providing for the greatest happiness, since that would follow of itself) is at least a necessary idea…”
(CPR A316/B373).
76 See p. 316n15 on the two parts of Kant’s practical philosophy and the special epistemic status of the
fact of finitude as transcendental rather than empirical.

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Metaphysics of Morals is unwarranted, and thus lends no independent support to their

teleological interpretation of the moral basis of our duties of right.

Now one might think that approaching Kant’s philosophy of right from the

perspective of the value of humanity cannot but reproduce the inadequacies of a teleological

interpretation, as Robert Pippin seems to think: “The doctrine of right can then on this

account be connected with the moral theory, but only if we interpret the theory as

substantive value theory and only secondarily as deontology.”77 For Pippin, any appeal to

the Formula of Humanity to connect the two dimensions of Kantian freedom “sends us in an

ultimately non-Kantian direction to claim that a course of action is our duty because fulfilling

that duty is a “means” to respect and realize freedom.”78 I suspect Pippin’s worry is due to

an ambiguity in the meaning of the term “means.”79 In the context of action, to say “-ing is

a ‘means’ to -ing” can actually mean one of two very different things: either “-ing is a causal

means to -ing” or “-ing is constitutive means to -ing.” Only when the “means” is causal as

opposed to constative is the relation between means and ends instrumental. The relevant

point is that constitution picks out a “synchronous and asymmetric relation between relata

that cannot be conceived as independent existences.”80 When I set out to score a goal with

the end of winning a soccer match, the relation is obviously instrumental: scoring the goal is

temporally prior to winning the match and winning is a causal consequent of the goal. The

goal and winning are “separate existences” and the latter only contingently obtains as a

result of the former. By contrast, when I decide to tell the truth so as to make myself worthy

77 Pippin 2006, p. 427.

78 Op. cit., p. 428.
79 The ambiguity I go on to discuss is quite common, e.g.: “Kant justified membership in civil society as a
necessary means for preserving individual freedom” (Westphal 1992, p. 406).
80 Ylikoski 2013, p. 218.

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of being happy, the relation is constitutive:81 telling the truth is synchronous with being

deserving of happiness; the two relata are asymmetrical, as I can make myself deserving of

happiness through other moral acts; and they are not “separate existences.” To tell the truth

just is to be deserving of happiness. If we apply this analysis to the case of the value of

humanity, there is an equally significant difference between an action being required as a

means to promoting humanity versus protecting it. It is only the “promoting” relation that is

instrumental and therefore “non-Kantian,” as Pippin puts it, while the “protecting” relation

is constitutive and thus perfectly consistent with Kantian deontology.82 As will become

apparent in the course of the discussion, the relation between the value of humanity and the

institutions for which Kant argues in his philosophy of right is constitutive, not instrumental.

And this is just what Kant meant by the Formula of Humanity—that the value of humanity

“is a negative end, one that is not to be acted against, rather than a purpose to be achieved.”83

Pippin’s objection perfectly applies to the Pogge-Beck teleological reading I have criticized,

but does not extend to the view I develop in Chapter 7 and 8.84

81 I purposely use this Kantian example: “morals is not properly the doctrine of how we are to make
ourselves happy but of how we are to become worthy of happiness” (CPrR 5:130).
82 For a helpful explanation of the protection/promotion distinction, see Pettit 1997, pp. 74-75. Notice,
also, that it coheres with Scanlon’s analysis of teleological accounts of value as committed to a “to be promoted”
criterion of rightness (see p. 351n71). Kant scholars sometimes feed into worries like Pippin’s by failing to
keep the promotion/protection distinction in sight, e.g.: “The end or value which is served by adherence to the
fundamental principle of morality is human freedom or autonomy; that is, adherence to the principle of
morality, in whatever form it is expressed, preserves and promotes the exercise of freedom by all human beings”
(Guyer 1997, p. 124; emphasis added).
83 Korsgaard 1996 [1989], p. 17.
84 One additional point apropos of the protection/promotion distinction. I pointed out that a key defect
in the teleological account is that obligations of right could not but be merely hypothetical imperatives which
“represent the practical necessity of a possible action as a means to achieving something else that one wills” (G
4:414, emphasis added). We can now see why the “something else” clause is of the essence to Kant’s theory, as
it enables him to exclude from the class of hypothetical imperatives any maxims such that the action they
recommend is a constitutive means to the end sought by the agent. Only when the end of the action is
“something else,” an “independent existence” other than the logical yet non-causal consequences of the
performance of the act itself, is the action endorsed as a merely instrumental means. In other words, maxims
adopted because of the causal consequences of the act correspond to hypothetical imperatives, whereas
maxims adopted because of the logical consequences of the act correspond to categorical imperatives.

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It appears, then, that we can neither sever nor misconstrue as teleological the

connection between Kant’s moral and political philosophies. It seems to me that the right

view is that Kant’s moral theory grounds his philosophy of right in the way I have outlined in

this section and will develop at length in Chapter 8. This “grounding” relationship is not a

simple derivation from, or straight-forward application of, the categorical imperative or the

doctrine of autonomy to the domain of the political. Kant’s moral doctrine applies equally to

all rational agents as such, but it only has political implications for finite agents who exist

phenomenally in space and time. What we need to understand is how temporality and

spatiality translate the moral value of humanity into coercible requirements of right, where

those requirements are justified as protecting (not promoting) our humanity. The view, in a

nutshell, is that among finite rational agents, compliance with duties of right is constitutive

of respecting one another’s humanity and therefore morally required.85 Insofar as the

Formula of Humanity requires that we respect other people’s rights, “the contours of the

This way of understanding the distinction between hypothetical and categorical imperatives concedes
that on a broad enough conception of consequentialism (such that the constitutive consequences of an action
count morally just as much as its causal consequences), Kant turns out to be a consequentialist. But so would
every other moral philosopher! Contrast this broad consequentialism with the causal-consequences-only
version as defined (though not defended) by Bernard Williams, for example. According to Williams, “the central
idea of consequentialism” is that “the only kind of thing that has intrinsic value is states of affairs,” by which he
means “to contrast states of affairs with other candidates for having such value: in particular, perhaps, actions”
(1973, pp. 83-84). Williams’ definition of consequentialism excludes valuing a state of affairs simply in virtue
of a given action having taken place in it, as allowed by the broad conception of consequentialism for which
constitutive consequences count as much as causal ones. On Williams’ narrower definition of
consequentialism, Kant obviously comes out on the opposite camp.
85 My view is consistent with Waldron’s insistence that Kant’s political philosophy “is not just the
application of his moral philosophy to issues of public concern” (1996, p. 1536). It is an application all right,
but to beings defined by their spatio-temporal finitude and only indirectly “to issues of public concern.” Any
interpretation of the foundations of Kant’s political philosophy that does not pay careful attention to how Kant’s
philosophy of right is premised on the metaphysics of time and space is incomplete at best. This crucial
observation seems to be understood, but not developed, by Kersting: “Because human beings live with others
of their kind in space and time, enter into external relations with others of their kind, and influence the actions
of others through their own, they are subject to reason’s law of right” (1992, pp. 344-345, emphasis added).

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duties” we owe to other people largely “depend on the results of political philosophy and

actual political decision making.”86

86 Pallikkathayil 2010, p. 141.

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CHAPTER 8. EXEUNDUM EST E STATU NATURALI

In this Chapter I work through the details of Kant’s argument for the moral obligation

and coercible right to bring about a civil condition based on the demands of the value of

humanity. Section 8.1 explains Kant’s doctrine of the unconditional value of humanity—that

is, of Wille-as-capacity—and shows how the duty to respect humanity entails a duty to

respect other rational agents’ external freedom. The key mediating premise, which most

commentators fail to explicate, is the fact of temporal finitude: because we are phenomenal

beings who exist in time, the only way to respect the exercise of our volitional capacity for

rational self-determination is to respect our ability to externalize or act on our intentions in

the world. My reconstruction shows why external freedom is valuable and why we all have

a moral claim to individual independence. For Kant, external freedom is a sui generis moral

entitlement because it constitutes an authorization to coerce. The inference of a (coercible)

right from a moral entitlement to external freedom depends on the normative implications

of our phenomenal existence in space. It is only because we are embodied rational agents

that we can be interfered with and thus be dominated. The moral reality of our entitlement

to independence depends on the permissibility of coercing would-be interferers.

Having shown that external freedom constitutes a coercible right, I devote section 8.2

to working out Kant’s argument from the Innate Right to Freedom to the moral obligation to

bring about, and right to live in, a civil condition. The fundamental idea is that rational nature

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would be unjustifiably restricted without “acquired” rights such as private property; that

such rights can only exist when unilateral acts of acquisition put everyone else under an

obligation to respect what is one’s own; and that this is only possible against the background

of the “omnilateral will” of the state. No property without state, and no adequate sphere of

external freedom without property. The state is thus necessary to live in accordance with

the demands of humanity as they pertain to finite rational beings.

I argued in Chapter 7 that Kant’s moral philosophy grounds his political thought.

From Kant’s perspective, there is a clear argumentative path from the unconditional value of

humanity to the imperative to form a civil condition. But it does not follow that Kant’s

political theory necessarily comes with the baggage of his moral philosophy. As I argue in

section 8.3, one can endorse Kant’s analysis of the institutional implication of the value of

freedom as independence without having to agree with him on the ultimate normative

foundations of the value of non-domination. Having shown the solid moral footing on which

Kant’s politics stands, we can abstract from the doctrine of “inner” freedom altogether in

working through the institutional proposals that spring from the demands of “external”

freedom.

8.1 Humanity and Independence

The first part of Kant’s argument for the moral foundations of politics proceeds in two

steps. First, Kant alleges that humanity as the capacity for rational self-determination is the

unconditional source of all value, and so an “end in itself” (G 4:428) that commands our

respect. Qua object of respect, humanity ought to serve a negative, regulative role in our

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practical deliberations: we must never do anything that transgresses our own or other

people’s humanity. We must protect (rather than promote) each other’s humanity, and so

morality forbids tampering with our own or other people’s purposiveness. We are forbidden

to treat humanity “merely as a means” to our own ends (G 4:429). Second—and this is

critical—, treating humanity as an end in itself when it is instantiated in finite rational agents

entails a commitment to respecting each agent’s capacity to externalize intentions or maxims

as deeds in the world. The Formula of Humanity thus grounds the value of “external”

freedom and so a universal moral entitlement to independence.1

I argued in Chapter 7.2 that the attribute of human beings that grounds their absolute

worth or “dignity” is the Wille as capacity for rational self-determination, what Kant calls our

“humanity.”2 The thrust of the argument for the unconditional value of humanity is the

1 The argument I develop in this section is much indebted to Korsgaard’s (1996 [1986]) and Wood’s
(2008) the interpretation of the Formula of Humanity as Kant’s (non-teleological) theory of value. The best
account I know that explicitly draws a connection between Kant’s Formula of Humanity and the Innate Right
to Freedom is Hodgson’s (2010), though his argument is incomplete because it does not fully explain what is it
about finite rational agents that makes respecting their humanity an inherent commitment to respecting the
externalization of their maxims or intentions as deeds in the world.
Some scholars reject any attempt to read Kant through the lens of the absolute value of humanity, as I
do in this chapter. Westphal, for instance, holds that “Kant’s moral theory does not need to appeal to any
independent premises regarding the purported incommensurable value of rational agency” because the
“’shareability’ of principles or justifying reasons” is inherent to rational justification (2014, p. 182). This is not
the place to defend the general framework I adopt against this and similar objections, but I should like to raise
the following issue with Westphal’s argument: unless Kant had an argument for the equal value or standing of
every person in the world of reasons, why should their shareability matter in the first place? It seems to me
that reasons ought to be “shareable” because our practical rationality commits us to regarding other people’s
as equally normative. The value of humanity or practical reason explains why we ought to “think from the
position of any and everyone else” (ibid.). See p. 367n10-11 on this exact point.
2 Kant’s use of the term “humanity” (Menschheit) is infelicitous because the property it designates is
equally instantiated in “holy” or “divine” wills, which are obviously not human. There is nothing distinctively
menschlich in Kant’s “humanity.” Human beings just happen to instantiate the property of self-legislating
practical reason which, in principle, any number of non-human beings may possess as well. This much is clear
even in Kant’s canonical statement of the Formula of Humanity: “Now I say that the human being and in
general every rational being exists as an end in itself, not merely as a means to be used by this or that will at
its discretion” (G 4:428, emphasis added). Kant goes farther and claims that it is impossible to prove that only
human beings could instantiate the capacity of “humanity,” as he points out against Herder’s Erect Posture
Hypothesis: “It is also not necessary for him who is of the latter opinion [i.e. of an opinion contrary to
Herder’s]… to prove that human reason might ever be possible with another form of organization, for into this
there can be no more insight than into how it might be possible in the present form alone. The rational use of

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following: Theoretical reason—the scientific view of the world—gives us no warrant to

believe that there is such a thing as objective value. “I call the world as it would be if it were

in conformity with all moral laws (as it can be in accordance with the freedom of rational

beings and should be in accordance with the necessary laws of morality) a moral world.

This is conceived thus far merely as an intelligible world” (CPR A808/B836, emphasis added).

Moral value (and value generally) is nowhere to be found in the phenomenal world. “[T]he

morally good as an object is supersensible, so that nothing corresponding to it can be found

in any sensible intuition” (CPrR 5:68, emphasis added). For Kant, then, value can only be

accounted for—it can only come into the world, so to speak—through the practical or

agential standpoint, because practical reason alone gives us access to the “supersensible” or

“intelligible” realm.3 If agency is the only gateway to value, then it must be the case that

whenever we predicate value of an object, we do so as a function of an agent’s volitional

attitude towards it. Indeed, “good or evil always signifies a reference to the will insofar as it

is determined by the law of reason to make something its object” (CPrR 5:60). In Kant’s view,

experience also has its boundaries. It can teach us, to be sure, that something is so-and-so, but never that it
could not at all be otherwise” (RH 8:57).
One wishes Kant had consistently used the term “personality” instead, as he sometimes does to
designate the same property picked out by “humanity”: “It is nothing other than personality [Persönlichkeit],
that is, freedom and independence from the mechanism of the whole of nature, regarded nevertheless as also
a capacity of a being subject to special laws—namely pure practical laws given by his own reason” (CPrR 5:87);
“These [rational beings called persons [Personen]], then, are not merely subjective ends, the existence of which
as an effect of our actions has worth for us, but rather objective ends, that is, beings the existence of which is in
itself an end” (G 4:428); “A person is a subject whose actions can be imputed to him. Moral personality
[moralische Persönlichkeit] is therefore nothing other than the freedom of a rational being under moral laws”
(MM 6:223); “nothing has an absolute worth but persons [Persohnen], and this consists in the goodness of their
free power of choice” (N&F 6598, 19:103); “The dignity of humanity in one’s own person [Persohn] is
personality [Persönlichkeit] itself, that is, freedom; for one is only an end in oneself insofar as one is a being that
can set ends oneself. The irrational, who cannot do that, have worth only as means” (N&F 7305, 19:307).
3 Hence Kant’s famous doctrine of the “primacy” of practical over theoretical reason: “one cannot require
pure practical reason to be subordinate to speculative reason and so reverse the order, since all interest is
ultimately practical and even that of speculative reason is only conditional and is complete in practical use
alone” (CPrR 5:121).

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all value is agency-relative. Hence rational agency as such, being the condition of all value,

must itself be unconditionally valuable.4

Now Kant actually offers two independent yet complementary accounts that make

the case for the unconditional value of humanity. The first aims at showing that such a value

is the very condition of possibility of moral action in general. If morality concerns principles

of action, and every maxim or principle of action includes an object—that which is the end

of the act in question—, then there must be “some [objects or ends] that are also (i.e., by their

concept) duties,” ends with unconditional moral value.5 Without unconditionally good ends

to which our moral maxims could refer, there could be no moral maxims in the first place.

The object of moral maxims must be absolutely good by rational standards, and so good for

every rational agent as such: “what serves the will as the objective ground of its self-

4 In contemporary terms, this is to say that Kant is a constructivist about value: “Kant sees the world of
value as a human construction—values result from acts of valuing, rather than the reverse. Valuing is not a
response to reasons and values that are already “out there.” It is a response to the need, created by our self-
consciousness, to endorse the grounds of our actions, and so to treat them as reasons” (Korsgaard 2004, p.
101). For similar views on Kant, see Hodgson 2010, p. 798 and Westphal 2014, pp. 177-185.
5 Because Kant often emphasizes the formal features of moral maxis, this important premise is very
often overlooked: that “All maxims have, namely, 1) a form, which consists in universality; and in this respect
the formula of the moral imperative is expressed thus: that maxims must be chosen as if they were to hold as
universal laws of nature; 2) a matter, namely an end, and in this respect the formula says that a rational being,
as an end by its nature and hence as an end in itself, must in every maxim serve as the limiting condition of all
merely relative and arbitrary ends” (G 4:436). Because moral maxims must not only have a moral form, but
also a moral matter or object, morality necessarily includes an account of “the moral (objective) doctrine of
ends” (MM 6:385). After all, “pure practical reason is a faculty of ends generally” (MM 6:395; emphasis added).
There are two sorts of moral ends in Kant: those that ought to be protected and those that ought to be promoted
(corresponding to perfect and imperfect duties, respectively). Ends that ought to be protected are negative:
ends we must never transgress against. They are part of Kant’s account of “the right,” or the categorical
imperative (see p. 326n33 on the Formula of Humanity). By contrast, ends that ought to be promoted are
positive ends, or Kant’s account of “the good.” Of course, the doctrine of positive ends or “the good” is derived
from, not prior to, the doctrine of “the right,” for “If the concept of the good is not to be derived from an
antecedent practical law but, instead, is to serve as its basis, it can be only the concept of something whose
existence promises pleasure” (CPrR 5:58; cf. also 5:63-64). But though derivative with respect to “the right,”
there is in Kant a doctrine of “the good” nonetheless: “Hence in ethics the concept of duty will lead to ends and
will have to establish maxims with respect to ends we ought to set ourselves, grounding them in accordance
with moral principles” (MM 6:385). His account of the necessary positive ends of morality includes “one’s own
perfection and the happiness of others” (ibid.).
When I say that all moral maxims ought to have a moral end, this is strictly speaking true only of the
“negative” end of morality: humanity as something to be protected rather than promoted.

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determination is an end, and this, if it is given by reason alone, must hold equally for all

rational beings” (G 4:427). In Kantian terminology, the existence of an unconditionally good

end is a transcendental condition (a condition of possibility) of moral action. Because

theoretical reason gives us no warrant to attribute such value to (phenomenal) objects in the

world, unconditionally good ends must be identified by reference to an agent’s choice or

endorsement of such ends. But if, as Hume believed, all our ends are chosen as a function of

the contingently given desires of our subjective motivational set, then the value of our ends

would always be conditional on those desires which themselves lack any justification or

intrinsic rational value. “The ends that a rational being proposes at his discretion as effects

of his actions (material ends) are all only relative; for only their mere relation to a specially

constituted faculty of desire on the part of the subject gives them their worth…” (G 4:427).

In that case, all value would be agent-relative and so hopelessly subjective, since my own

contingent desires have no normative grip on your reasons for action. What is good for me

as function of the desires I happen to have has no bearing on what is good for you given your

own (equally contingent) subjective motivational set. On the Humean picture of agency, we

would be left “without [objective ends],” and so “nothing of absolute worth would be found

anywhere; but if all worth were conditional and therefore contingent, then no supreme

practical principle for reason could be found anywhere” (G 4:428)

However, as we have seen in connection with Kant’s “positive” conception of freedom,

it is not true that desires (or “inclinations”) exhaust the possible grounds on which we choose

our ends. Practical reason itself can set ends for action, too. And those ends endorsed by

practical reason would no longer depend on the contingent elements of any given agent’s

psychology, but rather on the shared—hence universal—norms of rationality. The ends

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endorsed on purely rational grounds are still conditionally valuable, but the antecedent is an

attribute equally shared by every rational agent as such. The value of such ends is, as a result,

agency-relative, but not agent-relative at all. All rational agents are therefore committed to

regarding their shared rational agency as the source of the value of the ends they endorse.

This just means that we are committed to valuing our shared rational agency in itself and

unconditionally to boot, for the capacity of rational self-determination is the fons et origo of

all moral value in the world. If anything commands our respect, it is that capacity itself, what

Kant calls our “humanity.”

The second and, to my mind, stronger account of the absolute value of humanity

proceeds somewhat differently. Instead of focusing on the necessary existence of “moral”

ends for there to be moral maxims, this alternative approach discloses every agent’s implicit

commitment to the absolute value of practical rationality or “humanity” inherent in every

action, whether moral or not. We can read Kant as beginning with an explicit endorsement

of “an old formula of the schools, nihil appetimus, nisi sub ratione boni; nihil aversamur, nisi

sub ratione mali,” the same Aristotelian principle I discussed in connection with Hobbes’s

theory of attributed consent: that whenever we pursue an end, we do so because we take it

to be “good” under some description.6 This principle implies that whenever I do something,

6 See Chapter 1.2 for the role of this principle in Hobbes’s philosophy. True to his commitment to the
priority of the right over the good (see p. 363n5), Kant takes notice of an important ambiguity in the “old
formula”: “For it may mean: [1] we represent to ourselves something as good when and because we desire (will)
it, or also: [2] we desire something because we represent it to ourselves as good, so that [1] either desire is the
determining ground of the concept of the object as good, or [2] the concept of the good is the determining
ground of desire (of the will); so [1] in the first case sub ratione boni would mean, we will something under the
idea of the good; [2] in the second, we will something in consequences of this idea, which must precede volition
as its determining ground” (CPrR 5:59n). Essentially, Kant’s gloss distinguishes the case where [1] we take an
object to be good because we desire it from that in which [2] we come to desire an object because we take it to
be good. This distinction tracks the difference between [1] heteronomous and [2] autonomous volition, but it
is immaterial to the argument I am reconstructing. Regardless of the incentive that presents the object as
eligible to the will—[1] mere desire or inclination in heteronomous action, or [2] respect for law in autonomous
action—, the fact remains that the agent must adopt a maxim that endorses the end and embodies a rational

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I commit myself to the claim that the end of my action is good (under some description). 7

Most importantly for Kant, I am committed to thinking that my willing the end, my endorsing

it as “mine,” makes it good. Since a world without practical agents is a world deprived of all

(moral) value, only the fact of my endorsement can possibly make my end valuable or good.8

I must, as a result, implicitly take myself to be the source of the value of the ends which I

pursue in action—regardless of the moral quality of my maxim. I am therefore also

committed to viewing myself as having unconditional value, as being an end in itself. “These

[rational beings called persons], then, are not merely subjective ends, the existence of which

as an effect of our actions has a worth for us, but rather objective ends, that is, beings the

existence of which is in itself an end” (G 4:428).

The question then arises, what is it in me that grounds my ability to confer value upon

my ends? According to Kant, it can only be my Wille, my capacity to endorse an end on

commitment to its desirability or goodness. Whether we will the end because we take it to be good, or whether
we represent it as good because we desire it, the end is always seen “under the guise of the good,” which is all
that matters for my purposes here.
7 Kant was by no means the first to notice that the sub ratione boni principle entails a view of action as
an avowal or commitment to the goodness of one’s ends. The same inference was clear to the Medieval
scholastics: “whoever seeks what ought not to be sought is in error, even though he would not seek it unless he
thought it was good” (Augustine 1993 [391-395], Book II, §9 (p. 47), emphasis added); “After all, since no one
should do anything but what he ought to do, by the very fact that someone does something, he says and signifies
that he ought to do it” (Anselm 2000 [c. 1080-1085], Ch. 9, pp. 17-18, emphasis added).
8 I therefore disagree with David Sussman’s claim that “Kant’s regress argument… is sufficient to
establish the unconditional value of humanity, without committing Kant or the Kantian to any very specific
views about the sources of value in general” (2003, p. 353). On the contrary: the argument for the unconditional
value of humanity is a theory about the source of value in general—indeed, about rational agency as the only
source of value.
I am skeptical of Sussman’s attempt to make space for objects of “intrinsic value” other than “ends in
themselves,” i.e. rational agents, in a way that is independent of humanity. If “something is of intrinsic value to
the extent that its nonrelational properties make some proattitude appropriate to hold toward it” (p. 354), I
cannot see how anything other than “ends in themselves” could count as being intrinsically valuable for Kant.
Sussman’s alleged counter-examples—“scientific knowledge” or “Caravaggio’s St. Jerome” (p. 355)—are
unconvincing. Wherein lies the value of scientific knowledge per se in complete abstraction from its relation to
rational nature? Among two worlds barren of rational agency, why is one containing a Caravaggio to be
preferred? Surely some things remain valuable even if nobody happens to value them at any given time. But
value independent of the very possibility of someone’s valuing, of a rational being’s possible engagement with
the putatively valuable thing? I very much doubt Kant would take that possibility seriously.

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intelligible (even if not fully rational) grounds. Even when I act contrary to the moral law,

and so fail to be fully rational, I am exercising my rational capacity to endorse ends, and that

is what bestows value upon them. Crucially, what makes the Wille as capacity value-

conferring is not that it is “mine,” but rather the fact that it is pure practical reason. There is

no basis to claim that “my rational agency is somehow uniquely authoritative” because

“there is nothing that makes my agency authoritative in a way that yours is not.”9 Since there

is nothing special about “my” practical reason, I am committed to regarding this capacity as

absolutely and equally valuable in every other being in whom it is instantiated.10 “The

ground of this principle is: rational nature exists as an end in itself. The human being

necessarily represents his own existence in this way; so far it is thus a subjective principle of

human actions. But every other rational being also represents his existence in this way

consequent on just the same rational ground that also holds for me; thus it is at the same

time an objective principle” (G 4:428-429). The Formula of Humanity thus naturally leads to

the Formula of the Kingdom of Ends, or the idea of “a systematic union of rational beings

9 Hodgson 2010, p. 800.

10 This analysis explains Kant’s emphasis on universalizability as a test for the rationality and morality
of reasons for action. (i) If I am committed to regarding my ends as good because I endorse them; and (ii) if my
endorsement is value-conferring because it is grounded in the exercise of practical reason; and, further, (iii) if
practical reason as such is thus the source of the value of my ends, then it seems that I am also committed to
regarding my reasons for action as having a universal scope—as applying to every rational agent. My reasons
carry with them a commitment to their own universality or “shareability” (see p. 361n1). Because the principle
of non-contradiction is a constitutive norm of rationality (“the condition of having reason at all,” CPrR 5:120),
it appears that testing the universalizability of my reasons is an intuitively sound way to assess their rational
(and hence moral) validity. Viewed this way, the Formula of Humanity entails the Formula of Universal Law.
This is exactly the Kantian view Thomas Nagel develops in The Possibility of Altruism: “The thesis which
I propose to defend is simply that the only acceptable reasons are objective ones; even if one operates
successfully with a subjective principle, one must be able to back it up with an objective principle yielding those
same reasons as well as (presumably) others. Whenever one acts for a reason, I maintain, it must be possible
to regard oneself as acting for an objective reason, and promoting an objectively valuable end” (1970, p. 97).

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through common objective laws,” where all such beings embody the one and only source of

all moral value: Wille-as-capacity or “humanity” or pure practical reason.11

Whatever their merits, the two arguments I have examined—one from the

transcendental conditions of moral maxims, the other from the rational commitments

inherent in action—jointly support Kant’s contention that humanity is absolutely valuable

and therefore an object of unconditional respect, something to be protected at all costs. 12

“Now I say that the human being and in general every rational being exists as an end in itself,

not merely as a means to be used by this or that will at its discretion… Thus the worth of any

object to be acquired by our action is always conditional… These [rational beings called

persons], then, are not merely subjective ends, the existence of which as an effect of our

actions has a worth for us, but rather objective ends, that is, beings the existence of which is

in itself an end” (G 4:428).

Interpreters of Kant often assume that establishing the absolute value of humanity

suffices to ground the Innate Right to Freedom and the Universal Principle of Right.

Hodgson, for instance, moves seamlessly from the view that only rational agency has

absolute worth to the Kantian doctrine that only claims of (external) freedom can justify

11 The strong moral implications of the rational commitment to the value of humanity are well brought
out by Korsgaard: “You would think that the other has a reason to stop [tormenting you], more, that he has an
obligation to stop. And that obligation would spring from your own objection to what he does to you. You
make yourself an end for others; you make yourself a law to them. But if you are a law to others in so far as you
are just human, just someone, then the humanity of others is also a law to you. By making you think these
thoughts, I force you to acknowledge the value of my humanity, and I oblige you to act in a way that respects it.
There is an appeal to consistency in this argument; it is meant to remind you of what the value of humanity
requires. But it is not what makes you take my reasons into account, or bridges the gap between your reasons
and mine, for there is no gap to bridge” (1996, §4.2.10 [p. 143]). Korsgaard is here explicitly drawing on Nagel’s
earlier elaboration of the same Kantian line of thought: “the present argument requires a conception of oneself
not merely as I, but as someone” (1970, p. 100; see p. 347n62.).
12 It is worth emphasizing that, persuasive or not, Kant has an actual argument for the absolute value of
humanity. It seems entirely unjust to his efforts to justify it to claim that “the idea of humanity as an end-in-
itself is ultimately incomprehensible to us” (Flikschuh 2010, p. 395). That would almost amount to saying that
the authority of pure practical reason is “incomprehensible,” a conclusion Kant would have strongly resisted.

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constraints on (external) freedom itself (as stated in the Universal Principle of Right):

“having a rational nature puts one in the business of exchanging justifications for action… if

we ask when the use of force against me can be justified from my point of view qua rational

agent, we will find that it is only so justified when it is necessary to protect freedom.”13 This

is quite right as far as it goes, but it takes for granted the connection between the value of

humanity and the value of external freedom. What Kant needs to show is that a duty to

respect the value of humanity entails an obligation to respect an agent’s external freedom;

this inferences is mediated by the transcendental fact of our phenomenal existence in time

and space. The all-important fact of human finitude has rarely been given its due in previous

attempts to ground Kant’s philosophy of right on the value of humanity.14

Though the connection here might seem obvious, it can be and has in fact been called

into question. Consider the following suggestion, to the effect that humanity can be

respected by allowing an agent to form intentions (or adopt maxims) without also having to

respect the externalization of such intentions in actual deeds: “Morally significant actions,

13 Hodgson 2010, p. 796. Hodgson does an excellent job at explaining why only freedom can justify
restrictions on freedom, but his analysis does not explain how the value of external freedom is solidly grounded
in Kant’s moral philosophy. Hodgson is not alone in taking for granted the conceptual connection between
humanity and the value of external freedom, e.g.: “the universality of political freedom is linked to
transcendental freedom… Since every human being does enjoy transcendental freedom by virtue of being
rational, freedom of choice is a universal human attribute” (Rauscher 2017 [2016], p. 6). To say of “freedom of
choice” (by which Rauscher seems to mean external freedom) that it is an “attribute” falls short of explaining
why it is a valuable and deserving of respect.
14 Like Hodgson (2010), Christine Korsgaard clearly sees that our duties of right must rest on squarely
moral grounds, lest they lose their motivational grip on what individual persons take themselves to have reason
to do. As she correctly puts it, “Virtue encompasses the duties of justice: rights are sacred to a person who
values humanity, and acts of justice are transformed into acts of virtue when done for this reason” (1996
[1989], p. 20.). But, again, Korsgaard does not address Kant’s reasons for thinking that respecting the humanity
of finite rational beings necessarily involves respecting their spheres of external freedom. The same is true of
Arthur Ripstein’s impressive commentary on Kant’s philosophy of right, though Ripstein must be credited for
emphasizing the crucial role of spatial finitude Kant’s political philosophy: “Right is concerned with external
freedom, and intuitions are required to construct it precisely because right governs the relations between free
and rational beings who occupy space… [T]he a priori feature of rightful relations between rational beings who
occupy space cannot be derived from the Categorical Imperative” (2009, p. 358). My interpretation of Kant’s
move from ethics to right fills in the gaps that recur in views like Hodgson’s, Korsgaard’s, and Ripstein’s.

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then, are not coterminous with performances in the world. Essentially, they are those “inner

actions” or intentions that precede and partly cause our physical movements… Autonomy is

achieved in the impregnable inner citadel of man’s conscience, and it can be achieved even if

he is imprisoned.”15 The idea of the alleged gap between internal acts of volition and external

deeds is at least as old as Hegel’s critique of “the moral view of the world,” broadly associated

with Kant’s moral philosophy. Hegel suspected that Kant’s emphasis on autonomy, on the

importance of an agent’s volitional profile, leads to a slippery slope that culminates in a

radical retreat from the sphere of (external) action. An agent who follows Kant’s emphasis

on intention as the sole locus of the morality of action “knows that it has its truth in the

immediate certainty of itself,” in “his own conviction” alone.16 The problem for this agent is

that that Nature is “opposed” to “pure duty”17 in the sense that the natural world does not

cooperate in the attainment of his or her moral ends, to which it is hopelessly indifferent. As

a result, the purity of dutiful intention encourages an aversion to external deeds: “Just as

15 Beck 1999, pp. 225-226. It should be noted Beck’s overall reading of Kant’s moral though is strikingly
un-Kantian, as evinced in his interpretation of the Formula of Humanity: “the ‘treating humanity as an end’
requirement… if read in the context of Kant’s evolutionary account of human reason, would suggest nothing
other than that individuals must be treated as means to the realisation of their shared end, the proper
development of their distinctively human rational nature, and that, for as long as this end has not been achieved,
the historical exigencies of its realisation take priority over all individual concerns” (op. cit., p. 234). Kant does
indeed think that the human species as a whole rather than the individual human being is the appropriate
subject of historical progress, a point he makes repeatedly in opposition to Herder: “one can assume as a
principle that nature wants every creature to reach its destiny through the appropriate development of all
predispositions of its nature, so that at least the species, if nor every individual, fulfills nature’s purpose” (A
7:329; cf. also RH 8:53, 61, 65; CB 8:117; cf. Louden 2010, p. 361).
For Kant, it is clear that species-level and individual progress can come apart—a possibility that
enables him to concede Rousseau’s claims about the demoralizing effects of the arts and sciences on individuals
while vindicating their importance for the overall improvement of the species (A 7:324-325; cf. Axinn 1970, pp.
159-160). When individual and species progress do come apart, it is immoral for any given agent to violate the
humanity of another person for the sake of species-progress. The “evolutionary” account of human rationality,
as Beck calls it, is irrelevant to the derivation of perfect duties per the Formula of Humanity. Kant’s philosophy
of history and the requirements of morality are completely different levels of description of the human
condition; the former cannot justify using a human person “merely as a means” to the progress of others, not
even of humankind as a whole.
16 Hegel 1977 [1807], §637.
17 Op. cit., §634.

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little has consciousness an outer existence… It lacks the power to externalize itself, the power

to make itself into a Thing, and to endure [mere] being. It lives in dread of besmirching the

splendor of its inner being by action… and in order to preserve the purity of its heart, it flees

from contact with the actual world.”18 The Kantian agent, Hegel tells us, has a tendency to

become a “so-called ‘beautiful soul’,”19 a subject locked inside an inner citadel and completely

disengaged from the world of external action. If there is truth to Hegel’s worry and to the

idea that volitional acts can be intelligibly decoupled from external deeds, one might have to

concede that respect for humanity only requires not tampering with another agent’s “inner

actions” of will. Humanity would in that case not give us any reasons to respect an agent’s

ability to externalize intentions in the world. If so, why should constraints on that agent’s

external freedom be of any moral concern? Why would respect for humanity commit us to

respecting external freedom?

We might formulate the challenge somewhat differently. The objection I am

considering suggests that humanity (the capacity for autonomous volition) can be fully

exercised by a finite agent’s forming a “pure intention,” one that need never translate itself

into action.20 If that were possible, then we would lack a strong enough connection between

respecting humanity as a volitional capacity to form (pure) intentions on intelligible grounds

and respecting external freedom as the non-dominated capacity to externalize such

intentions as deeds in the world. I believe, however, that this is not, and cannot be, Kant’s

view. Kant is committed to the claim that it is in the nature of finite rational beings that they

18 Op. cit., §658.

19 Ibid.
20 I borrow the term “pure intention” from Davidson 1980b. For Davidson’s defense of the possibility of
“pure intending,” see pp. 88-89, 98-99.

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can never be said to have formed an intention or to have actually adopted a given maxim

until the intention or maxim in question becomes manifest in action. I only count as having

formed an intention to  if what I do here and now is conducive to -ing. Of course, I may

adopt maxims or intentions such that acting on them involves doing nothing here and now,

like the intention of going on vacation in six months. But if tomorrow is the last day for me

to purchase a ticket for my planned vacation and I simply do not do it, then I cannot be said

to have had the intention of going at all. Forming an intention through the exercise of one’s

volitional capacity for self-determination goes hand in hand with enacting the intention in

the world. Something like Elizabeth Anscombe’s analysis of “wanting”— of the only sense of

wanting “of any interest to the study of action and intention”—must be true of Kant: “The

primitive sign of wanting is trying to get: in saying this, we describe the movement of an

animal in terms that reach beyond what the animal is now doing… Thus there are two

features present in wanting; movement towards a thing and knowledge (or at least opinion)

that the thing is there… But where the thing wanted is not even supposed to exist, as when

it is a future state of affairs… our two features become: some kind of action or movement

which (the agent at least supposes) is of use towards something, and the idea of that thing”21.

It is meaningless to say that I want to  in the sense of actually intending to  unless I am

already -ing in some way–unless, that is, I am doing whatever seems most appropriate to

attaining the end for which I wanted to  in the first place.22

21 Anscombe 1963 [1957], §36, pp. 68, 70. Anscombe has in mind a sense of “wanting” unlike Davidson’s,
for whom “‘I wanted to turn on the light’ and ‘I turned on the light’ are logically independent” (1980a, p. 6).
Anscombe’s point—with which I agree—is that “I wanted-in-the-sense-of-intended to turn on the light” and “I
at least tried to turn on the light” are not logically independent at all; if the latter is false, then so is the former.
22 Paul Guyer nicely emphasizes the connection between volition and external action in Kant:
“Throughout his moral philosophy, Kant assumes that the freedom that is fostered by the principle of morality

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Consider the issue from the point of view of Kant’s theory of practical reason. All

practical agents have “the capacity to act in accordance with the representation of laws,”

which simply means that pure practical reason is sufficient to motivate them to act. (This is

just a restatement of Kant’s thesis that Willkür must always be conjoined with Wille.) What

distinguishes finite from “divine” or “holy” agents is that in the latter pure practical reason

is the only possible source of motives for action, the only source of “incentives” presented to

the will. Pure practical wills have no subjective motivational sets because they do not exist

(phenomenally) in time and space.23 While non-finite agents invariable act on the dictates

of pure practical reason, finite agents are only “practically determinable by reason” (G 4:412,

emphasis added). In their case, “reason solely by itself does not adequately determine the

will; … [their] will is exposed also to subjective conditions,” that is, to inclinations or desires

(G 4:412). This feature of the volitional profile of finite rational agents has a crucial

phenomenological implication: that “actions that are cognized as objectively necessary are

subjectively contingent” (ibid.; cf. MM 6:222-223). Only finite agents experience

“necessitation” (MM 6:223), or the feeling of obligation attached to what seem to them to be

rationally required courses of action.24 In this duality of the human will, in its openness to

is the freedom to choose to adopt maxims of action and to act in accordance with those autonomously chosen
maxims” (1997, p. 126).
23 See p. 320n19. Consider the idea of a desire. Clearly to desire something involves the representation
of a state of affairs that does not presently obtain. The emphasis here is on “presently”: desiring is an intentional
state that is only intelligible in a world structured by the metaphysics of time.
24 See p. 338n53. This is the reason why moral duty equally applies to divine as well as human agents,
but only the latter experience it as obligation in the form of imperatives: “A perfectly good will would, therefore,
equally stand under objective laws (of the good), but it could not on this account be represented as necessitated
to actions in conformity with law since of itself, by its subjective constitution, it can be determined only through
the representation of the good. Hence no imperatives hold for the divine will and in general for a holy will: the
“ought” is out of place here, because volition is of itself necessarily in accord with the law” (G 4:414). Again:
“An imperative differs from a practical law in that a law indeed represents an action as necessary but takes no
account of whether this action already inheres by an inner necessity in the acting subject (as in a holy being) or
whether it is contingent (as in the human being); for where the former is the case, there is no imperative” (MM
6:22).

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being moved by both reason and sensibility, lies the difficulty of morality, what Kant calls the

“natural dialectic”: “The human being feels within himself a powerful counterweight to all

the commands of duty…—the counterweight of his needs and inclinations, the entire

satisfaction of which he sums up under the name happiness” (G 4:405; cf. CPrR 5:74).25

It follows that any resolution a human agent makes in the course of deliberation

remains no more than provisional until the agent actually acts on it. This is a result of our

phenomenal existence in time: qua temporal beings, our deliberative resolutions are open to

revision before becoming an actual intention up until the point in which they move us to act.

25 This and similar passages encourage the common view of Kant’s morality as a rigorism inimical to
happiness. Kant’s view is often thought to be that “The worth of a character first occurs…when someone
without sympathy in his heart, cold and indifferent to the suffering of others, and not actually born a friend of
humans, still does good deeds solely for the sake of disagreeable duty. This assertion, shocking to genuine moral
feeling, this apotheosis of uncharitableness, is directly opposed to Christian moral teaching that above all else
puts love, without which there is nothing (1 Corinthians 13:3), this tactless moral pedantry, Schiller has
playfully satirized” (Schopenhauer 2010 [1840], p. 148. The satire alluded to is this: “The Scruple of Conscience:
Gladly I serve my friends, but alas I do it with pleasure, / Hence I am plagued with doubt that I am not virtuous.
/ The Verdict: For that there is no other advice: you must try to despise them, / And then do with aversion what
duty commands you,” Schiller 2005 [1796], p. 237).
The Schiller-Schopenhaeur critique is mistaken for the following reason. For Kant, an action is moral
if and only if it is undertaken for duty’s sake—which is not to say that the agent may not have other attendant
motives that make the moral action attractive on grounds other than the call of duty. When I do something
good for a friend, my act is moral just in case I do it because it is morally required, but this is perfectly consistent
with my wanting to do it also out of love. When Kant uses examples of “cold and indifferent” agents who do
their duties almost in spite of themselves (as in G 4:398-399), he does so only for purposes of exposition and
in order to isolate the moral motive from any possible sensible one. In contexts where he is not concerned to
press the doctrine of the motivational sufficiency of purely rational considerations, Kant often talks about the
importance of enjoying a life of duty: “The rules for practicing virtue (exercitiorum virtutis) aim at a frame of
mind that is both valiant and cheerful in fulfilling its duties” (MM 6:484). Accordingly, “one must stress
cheerfulness and good humor to the young man. Cheerfulness of heart arises from having nothing to reproach
oneself for” (LP 9:499). At one point Kant goes as far as reprehending the morally good person who fails to
find enjoyment in his or her own character: “The cheerful heart alone is capable of rejoicing in the good. A
religion which makes the human being gloomy is false; for he must serve God with a cheerful heart and not out
of constraint” (LP 9:485). A morally upright life should issue in a certain “satisfaction with one’s existence,” a
“contentment with oneself” (CPrR 5:117). And, we must not forget, the happiness of others is one of our
(imperfect) duties of virtue (MM 6:381; see note 81).
Kant moralizes the idea of happiness, but never casts it aside. In fact, virtue consists in the “worthiness
to be happy” (CPrR 5:110; TP 8:278). He even takes Stoicism to task precisely because the ideal of apatheia
(the Stoic’s “insipid and languishing character,” CPrR 5:86) is indefensibly indifferent to human happiness:
“they would not let the second component of the highest good, namely happiness, hold as a special object of the
human faculty of desire… in this they could have been sufficiently refuted by the voice of their own nature”
(CPrR 5:127).

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This is an a priori fact about human volition for two related reasons. Fist, since “time is

nothing other than the subjective condition under which all intuitions can take place in us”

(CPR A33/B49), all the incentives of the will that it represents to itself as “candidates” to

become maxims of action are represented in time. Practical deliberation is a temporal

process. Second, we represent ourselves in the deliberative process as existing in time as

well: “Time is nothing other than the form of inner sense, i.e., of the intuition of our self and

our inner sense” (CPR A33/B50). The “I” that endorses a maxim and makes it its end is

transcendental or noumenal, but the “I” of deliberation is the “empirical consciousness” (CPR

B133) that exists phenomenally in time. Our will is by nature “determinable in time” (CPrR

5:96). This is also the reason why we are constitutively liable to akrasia or weakness of will.

For we can always fail to act on the intentions or maxims we think we ought to adopt

precisely because of the temporal open-endedness of the practical deliberations that precede

any of our actions. Until it becomes manifest in deed, we can’t be said to have truly adopted

a given intention or maxim.

In this sense, Kant must agree with the intuition behind Hobbes’s famous definition

of the will as “the last appetite” in deliberation; not purpose “shall… be accounted his will [or

intention], because he hath liberty still to dispose of them otherwise” (EL VII.2). The only

intentions or maxims that count as genuine resolutions of the will, as opposed to mere

wishes or second-order intentions, are those on which we act.26 “Insofar as [a faculty to do

or to refrain from doing as one pleases] is joined with one’s consciousness of the ability to

26 Notice that the need to distinguish second-order intention and wishes from first-order intentions does
not arise in the case of purely rational (holy or divine) wills. In the case of such beings, whatever they wish
they would do, whatever they think they ought to do, is in every case precisely what they do. This is obviously
not true of finite rational agents, to whom Anscombe’s analysis of “wanting” applies perfectly.

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bring about its object by one’s action it is called choice; if it is not joined with this

consciousness its act is called a wish” (MM 6:213)—and wishes don’t count as genuine

volitions of the sort that fully display our capacity for rational self-determination. It cannot

be the case for Kant that a finite rational agent can arrive at a volitional resolution—

autonomous or not—merely in the “inner citadel,” without as much as the attempt to act on

it in the world. Settling on a given maxim is something we can only attest to, even to

ourselves, by enacting it in the physical world. For finite rational agents, there are no such

things as volitional acts independent of externalized deeds.

Given this fact about finite rational agents, it seems that the exercise of humanity as

the capacity for rational self-determination is inextricable from executing one’s intentions

or maxims in outward deeds. If the externalized deed is thus part of exercising our humanity,

then respecting a person’s humanity necessarily involves respecting his or her capacity to

act in the shared, interpersonal world. There is in Kant a clear argumentative route from the

doctrine of “inner” freedom to the absolute value of humanity and, now at last, to the

normative significance of external freedom. To treat finite rational agents as “ends in

themselves” involves, among other things, respecting a sphere of action in which they ought

to be able to externalize their intentions without subjection to the arbitrary interference of

others. Respect for humanity entails respect for each person’s freedom as independence or

non-domination. We are morally entitled to our “independence from being constrained by

another’s choice” (MM 6:237). I think Kant sees this very clearly when he contrasts “a

beautiful soul” with “Goodness of soul,” for the latter, “whenever it is encountered[,] is

primordially creative” (A 7:242), always manifesting its intentions in external deeds.

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8.2 Fiat Iustitia

I have argued that Kant’s Formula of Humanity as applied to finite rational agents

who exist phenomenally in time entails a moral obligation to respect their individual spheres

of external freedom. In this section I take up the second part of Kant’s ambitious argument

for the moral necessity of states, in four steps:

First. The transcendental fact about human beings of their existence in space

establishes the connection between the moral entitlement to external freedom and the

authorization to coerce in the name of non-domination. The moral obligations associated

with respect for a finite agent’s external freedom acquire the distinctive feature of being

coercible because external freedom is specifiable only in terms of the metaphysics of space.

The only way to vindicate the reality of the moral value of external freedom is to allow and

even require legitimate coercion, that is, physical interferences that constitute “a hindering

of a hindrance to freedom” (MM 6:231). Such interferences are non-arbitrary in that they

track every rational agent’s interest in his or her own external freedom: the normative

permission to hinder hindrances to freedom benefits even the person whose action is

hindered in the name of freedom, just as the protection of a legal system benefits even the

individual who is convicted of a crime. In this way, the moral entitlement to a protected

sphere of external freedom is shown to be also a coercible right to its enjoyment. This

warrants the move from an innate moral entitlement to freedom to the Innate Right to

Freedom properly speaking and, ultimately, to the Universal Principle of Right as the

reciprocal authorization to coerce in the name of our individual rights to independence.

Second. Kant makes much of the thought that human beings live on a bounded

physical plain. The finitude of our spatial horizon, fixed by “the spherical surface of the

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earth” (MM 6:262), is indeed crucial to ruling out what would in principle be a perfectly valid

way of satisfying the demands of external freedom: shunning society altogether and living a

life of deliberate and perpetual isolation. Once this possibility is ruled out, the requirements

of the Innate Right to Freedom as they apply to us, humans on earth, entail that we are

obligated to create the institutions necessary to secure everyone’s external freedom. Like

any other moral obligation associated with our independence, bringing about such

institutions is also a coercible right we have against one another.

Third. External freedom or non-domination or independence cannot mean that one

is entitled to do whatever one wants. This raises an issue that I have not addressed at all so

far: what exactly is the extent of one’s legitimate sphere of external freedom? Without an

answer to this question, it would be impossible to live consistently with the demands of

external freedom. Much less would it be possible for us all to live together in way that

systematically respects everyone’s independence. Per the Innate Right to Freedom, external

freedom involves first and foremost respecting the physical space that an embodied rational

creature “occupies,” that is, his or her body. But finite rational purposiveness cannot

possibly be limited to command over one’s own body. Kant believes that it necessarily

extends to the possibility of using things in the world as instruments in the pursuit of one’s

ends. Therefore, the rights associated with external freedom must include what Kant calls

“acquired rights,” notably the right to private property. The bulk of this section is focused

precisely on the move from the Innate Right to Freedom to the right to bodily sovereignty

and, finally, to the need for conclusive “acquired” rights.

Fourth. The final step of the argument explains the principled impossibility of

acquired rights in general (and of private property in particular) in the absence of an

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“omnilateral will” that can only come into being through the institution of a state. The idea

of an “omnilateral will” in turn gives content to the conclusion of the second step—that we

have a moral obligation and a coercible right to create the institutions that guarantee our

external freedom. Kant’s conclusion, and it is a very strong one, is that every finite rational

agent who coexist with others on a bounded physical plane has a moral duty as well as

coercible right to bring about a civil condition given the opportunity to do so; unilateral

coercion is authorized, nay, required only when it is necessary to the creation of a common

state. To live alongside others under the “omnilateral will” of a single state is a duty of both

right and virtue. With this conclusion, Kant delivers on his promise to bridge the

philosophical gap in his predecessors’ contractualist theories: “That entry into civil society

is one of the first duties no one has yet properly seen” (F 27:1337).

I concluded section 8.1 with the claim that we have a moral obligation to respect every

finite rational agent’s sphere of external freedom. This obligation actually contains two

distinct moral injunctions, depending on the person to whom it is owed. On the one hand,

each finite rational agent has a moral duty to respect and protect his or her own sphere of

external freedom. This is part of the Kantian (perfect) duty of rightful honor: “Be an

honorable human being (honeste vive). Rightful honor (honestas iuridica) consists in asserting

one’s worth as a human being in relation to others, a duty expressed by the saying, ‘Do not

make yourself a mere means for others but be at the same time an end for them’” (MM

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6:236).27 I say that respecting one’s own independence is only “part” of the duty of rightful

honor because not every violation of rightful honor intrudes upon one’s external freedom.

We can act contrary to rightful honor in one of two ways: by either using ourselves “merely

as a means” or letting others use us in that way. We are guilty of the former in committing

suicide (G 4:429) or “defiling oneself by lust” (MM 6:425). Such cases of violations of

humanity in our own persons are obviously transgression of the duty of rightful honor, but

of a kind that does not affect our external freedom. In neither case am I allowing others to

dominate me (and I cannot intelligibly be said to “dominate” myself). The paradigmatic case

of a violation of rightful honor that does involve letting others use me merely as a means is

voluntary servitude. Kant is here in perfect agreement with Rousseau, as both reject the

possibility of validly consenting to being enslaved by someone else, even for the sake of the

good of another: “How far should one expend one’s resources in practicing beneficence?

Surely not to the extent that he himself would finally come to need the beneficence of

others… Or is not the injustice of depriving someone of his freedom something so contrary

to duty of right as such that one who willingly consents to submit to this condition, counting

on his master’s beneficence, commits the greatest rejection of his own humanity, and that

the master’s utmost concern for him would not really be beneficence at all?” (MM 6:454).28

In the remainder of Part III, I will always have the second class of requirements of rightful

honor in mind, namely, those that amount to forfeiting or compromising one’s own

independence by letting others use one as a mere means.29

27 The duty of rightful honor is obviously a reflexive application of the Formula of Humanity. This is one
of the most telling cues in Kant’s texts that the source of the value of external freedom is the absolute worth of
humanity.
28 See Chapter 4.4 for Rousseau’s argument against the normative validity of voluntary servitude.
29 Notice, by the way, that distinguishing the two subsets of requirements of rightful honor confirms that
not all “perfect” duties are (“strict”) duties of right. Not “defiling oneself by lust” is a perfect duty, but not

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On the other hand, each finite rational agent has a moral duty to respect other

people’s individual spheres of external freedom: “Do not wrong anyone (neminem laede)”

(ibid.). To the extent that “wrong” amounts to a transgression of another’s external freedom

as independence, we might say that we have a Kantian duty not to dominate others. “The

mania for domination… is intrinsically unjust… because it is contrary to freedom under law,

to which everyone can lay claim” (A 7:273).

So far, we have shown that these are moral obligations, that is, things we ought to do

because we are morally required to do them by the Formula of Humanity as it applies to us,

finite rational agents who exist phenomenally in space and time. Now Kant thinks that these

obligations are also coercible rights and that their coercibility is what makes them

distinctively political. Because they are coercible, the moral obligations associated with

external freedom are not only duties of virtue but also duties of right. It seems to me that

Kant’s inference of a coercible right from a moral entitlement associated with external

freedom is a clear case of a “synthetic a priori judgment” because (i) although the idea of

coerciblity is not analytically contained in that of a moral entitlement, (ii) it is still necessarily

and universally true that moral obligations of respect for external freedom are coercible. The

“tertium quid” that warrants this conclusion is the metaphysics of space as a transcendental

condition of the phenomenal existence of finite rational beings (CPR A22/B37-A30/B45).30

something that others can coercively demand of me, hence not a duty of right (cf. Pogge 1988, p. 410n8, and
Korsgaard 1996 [1989], pp. 20-21). There are even some perfect duties to others that do not seem to be duties
of right either, of which “the cases of promising and truth-telling are the most obvious” (Pippin 2006, p. 420),
except when someone lies about having a contract with someone else “in order to deprive him of what is his
(falsiloquium dolosum)” (MM 6:238n). Kant is clear on this point: “the expression ‘to have a right to the truth’
is meaningless. One must instead say one has a right to his own truthfulness (veracitas), that is, to the subjective
truth in his own person” (RL 8:426, 429). In short: duties of right are only a subset of perfect duties.
30 Scholars often discuss this step in Kant’s argument as if the question was about the relation between
rights and coercion, and most accurately affirm that “right” and “coercion” are analytically related for Kant (e.g.,
Kersting 1992, p. 346-347; Waldron 1996, p. 1555; Korsgaard 2008 [1997], p. 237; Flikschuh 2008, pp. 383,

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Self-regarding and other-regarding obligations of respect for external freedom have

the same kind of content. Rightful honor and the duty not to dominate others equally refer

to “external” freedom, that is, to the ability to externalize intentions in the world as deeds

without subjection to an alien will. The crucial fact to notice is that “externalizing” an

intention always involves a “doing” that occurs in space.31 A deed is a discrete spatio-

temporal intervention in the natural world that is distinguished from other events by its

intentional character, i.e., by the fact that it is sufficiently explained at a higher-than-physical

level of description by some agent’s intention to bring it about.32 In these rather abstract

terms, to be externally free means to be able to effect one’s intended spatio-temporal

intervention in the natural world without any other agent being able to interfere with one

doing so with impunity. The capacity to interfere is not a function of what other agents think

or of the way they feel about what I intend to do, nor does it depend on the reasons why I

adopt my intention or maxim. Hence, my volitional profile as well as other people’s

subjective attitudes are irrelevant to ascertaining the extent of my external (un)freedom.

What does compromise external freedom is another person’s power to act in the physical

world so as to impede me from externalizing my intention—a power that can be fully spelled

389-390). But this is a trivial conclusion, as Kant himself defines “right” as an “authorization to use coercion”
such that they “therefore mean one and the same thing” (MM 6:232). The philosophically substantive point
Kant makes is that a subset of our moral obligations, namely those that relate to our own or other people’s
external freedom, are also rights—hence coercible. And that claim—that certain moral obligations are
coercible—is by no means analytical, though it is a priori; it must therefore be a synthetic a priori proposition
(see p. 348n65).
31 See the discussion of intention as requiring external action in section 8.1.
32 See Pettit 1996 [1993], pp. 36-38, for the idea of levels of description of reality and the “programing”
view of intentions as multiply realizable, higher-level explanans of the (complex chain of) physical events we
individuate as “deeds.” Kant seems to work with the same notion of “deed”: “An action is called a deed insofar
as it comes under obligatory laws and hence insofar as the subject, in doing it, is considered in terms of the
freedom of his choice [= insofar as the event singled out as “deed” is intentional]. By such an action the agent
is regarded as the author of its effect [= the author’s intention “programs” for the occurrence of the multiply-
realizable effect], and this, together with the action itself, can be imputed to him” (MM 6:223).

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out in terms of other people’s (possible) spatio-temporal acts of interference.33 The being in

the position of a dominus is about having the power to interfere with another; and this power

to interfere is clearly a spatial power, a power to physically block or, to use Kant’s preferred

word, “hinder” someone else’s deeds in the shared physical world.34

Human beings indeed exist in a shared physical world structured by the disjunctive

metaphysics of space. Spatial existence is disjunctive in two respects: (i) an extended object

of a finite magnitude cannot exist in two different locations at the same time and (ii) no two

extended objects can be in the exact same location at the same time. Extended object A is

right now either here or there, but A cannot be in both places at once; and either A is here or

B is here right now, but both cannot be in the same place at once. In virtue of these

metaphysical facts, it turns out that it is possible of any plurality of finite rational beings that

they may enter into relations of domination, for A can always acquire the capacity to exclude

B from accessing the sets of spatio-temporal coordinates in which B intends to externalize

his or her maxim as a deed. (In plain English, A can acquire the capacity to interfere with B’s

writing a book by ensuring that it is in a position to physically snatch the pen away from B,

to threaten to take away B’s notebook, to pull the chair from under B, etc.). Our embodiment

makes us irreducibly liable to becoming externally (un)free, liable, that is, to being under

33 Actual manhandling is obviously “spatial” in this sense. But so is the unexercised capacity to
manhandle in general, as it can be defined counter-factually by reference to (possible) spatial interference. The
same holds of domination through threats because they invariably require a physical medium to convey them
and, more importantly, their efficacy ultimately depends on the possibility of future physical interference down
the chain of expected or announced consequences. This spatial analysis of dominating power is consistent with
Pettit’s construal of said power as “interactive,” “capacity-based,” “intentional,” and “negative” or “damaging”
(1997, pp. 78-79).
34 This is just another way of explicating the objective, observable matter-of-fact desiderata of external
(un)freedom, as noted in Chapters 6.2 and 7.3. Relatedly, this account of domination as spatial power further
supports the view that unembodied agents (Kant’s “holy,” “divine” or “pure” wills) cannot possibly be externally
(un)free. Since they have no phenomenal existence, i.e., since the they do not exist in space and time, much less
can they enter into relations of spatial power of any sort.

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another’s arbitrium to interfere with us. All of this holds just in virtue of our existence in

space.35

This spatial analysis of domination allows us to understand why the duties associated

with external freedom are necessarily coercive. A moral entitlement to intervene in the

natural world through my deeds without subjection to another’s will must mean, if anything,

that other people’s spatio-temporal interferences can and must be prevented or reversed—

and this can only be done physically, by yet another spatio-temporal intervention aimed at

preventing or redressing the interfering one. As Kant puts it, “Resistance that counteracts

the hindering of an effect promotes this effect and is consistent with it” (MM 6:231). The

only way to make good on the moral entitlement to external freedom is by being ready and

willing to resort to physical force to prevent or reverse actual or possible interferences with

it. In other words, the moral reality of such entitlements and their corresponding obligations

depend on their coercibility. And because the coercion that prevents or reverts A’s

interference with B’s actions is the only way to uphold the reality of B’s moral entitlement to

external freedom, the force used against A to that end is for that reason authorized and

legitimate despite being itself an interference with A’s freedom of action.36 Permissible

coercion against an alien will’s power to interfere with my actions is “the philosophy of

35 In more formal terms, the claim is the following: on the assumptions (i) that embodied beings have a
finite spatial magnitude, (ii) that space is infinite, and (iii) that there is a plurality of embodied beings in the
world, it is metaphysically possible that there be practical or physical conflict between such beings (and
therefore relations of domination). On the further assumption that (iv) the initial distance between at least two
embodied beings can be traversed during their life-spans without exceeding the speed of light, the practical or
physical conflict between them would is also nomologically possible. I thank Bill Kowalsky for helping me think
through the details of this argument.
36 The coercive act that counts a hindering of a hindrance to freedom limits the coerced party’s freedom
of action, not its external freedom, since the coercive act is not arbitrary at all. It is a defensive move on behalf
of someone else’s entitlement to independence, not a malicious or capricious targeting of the coerced party.

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right’s counterpart to the moral necessitation of the categorical imperative.”37 “Now

whatever is wrong is a hindrance to freedom in accordance with universal laws. But coercion

is a hindrance or resistance to freedom. Therefore, if a certain use of freedom is itself a

hindrance to freedom in accordance with universal laws (i.e., wrong), coercion that is

opposed to this (as a hindrance of a hindrance to freedom) is consistent with freedom in

accordance with universal laws, that is, it is right” (MM 6:231). This shows that the innate

moral entitlement to external freedom with which we concluded section 8.1 is in fact a right,

where “Right and authorization to use coercion therefore mean one and the same thing” (MM

6:232). Given the fact of our finitude, “legitimate coercion” is a “corollary” of the

“interpersonal character” of the demands of external freedom.38

Recall that the value of external freedom is one and the same regardless of whose

freedom it is. Because each rational agent’s entitlement to external freedom is equally

coercible, an action is permissible by the standards of right if and only if “it can coexist with

everyone’s freedom in accordance with universal law” (MM 6:230, emphasis added). This

juridical criterion of rightness is the Universal Principle of Right, and any action that fails to

live up to it can and should be hindered because it is itself a hindrance to freedom. “Right is

therefore the sum of the conditions under which the choice of one can be united [i.e., made

consistent] with the choice of another in accordance with a universal law of freedom” (ibid.).

In this way, Kant’s move from the Innate Right to Freedom to the Universal Principle of Right

37 Kersting 1992, p. 347.

38 Flikschuh 2010, p. 387. One important implication of this account of rights is that it justifies Kant’s
commitment to the correlativity thesis, or the view that every right entails correlative obligations on others. In
Kant’s own words, “Every right presupposes obligation from the other side. Obligation is, however, only a
restriction of the right of a person, but only under the conditions of another’s right” (RPR 7897, 19:548). To
say that rights entail obligations is just to restate the view that rights are always inherently coercible. This is
an important disagreement between Kant and Hobbes, as the latter clearly believes that there are non-coercible
rights (see Chapter 3.6, esp. p. 143n66).

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is exactly like the derivation of the Formula of the Kingdom of Ends from the Formula of

Humanity. The Formula of Humanity naturally leads to the Formula of the Kingdom of Ends

because the duty to respect humanity amounts to a duty to respect the agential sovereignty

of every being in whom that capacity is instantiated, and to respect it equally to boot. The

same holds for external freedom: we have a duty to respect every rational agent’s external

freedom equally. Thus, the Innate Right to Freedom also naturally issues in the Universal

Principle of Right: “Any action is right if it can coexist with everyone’s freedom in accordance

with a universal law, or if on its maxim the freedom of choice [Freiheit der Willkür] of each

can coexist with everyone’s freedom in accordance with a universal law” (MM 6:230).

Respect for external freedom involves a commitment to making each agent’s individual

sphere of external freedom equally consistent with everyone else’s.39

There is more still to the role of space in Kant’s argument. The metaphysics of space

allows us to translate the duty of rightful honor and the duty not to dominate others only

into a general disjunctive moral obligation: we must either guarantee by institutional means

each finite rational agent’s individual sphere of external freedom under conditions of spatial

proximity or each agent must flee all contact with every other so as to ensure that nobody is

in a position to physically interfere with anyone else’s deeds. In principle, because “Space is

represented as a given infinite magnitude” (CPR A25/B39), the duties associated with

respecting external freedom can be suitably discharged by deliberate isolation. Because

39 The argument from the Innate Right to Freedom to the Universal Principle of Right suggests that Kant
misspeaks when, at one point, he says that “external (rightful) freedom” and “external (rightful) equality” are
two “innate and inalienable rights belonging necessarily to humanity” (PP 8:350n). These are not in fact two
distinct and independent rights; there is only one innate natural right (the right to external freedom) which
must be equally ascribed of all persons precisely because it is “innate and inalienable.” The egalitarian
implications of the Innate Right to Freedom are fully accounted for by the interpersonal consistency
requirement of the Universal Principle of Right.

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shying away from contact with others is consistent with the demands of external freedom,

we cannot yet conclude that finite rational agents are required, on moral grounds, to create

the institutions necessary to ensure that each enjoys independence from, or non-domination

by, others. At this stage of the argument, all we have is a conditional duty to construct such

institutions: we are morally obligated to do so only if we cannot reliably avoid enough

proximity to others so as to render relations of domination nomologically impossible.40 Kant

sees this very clearly, as he immediately adds to the injunction “Do not wrong anyone” the

possibility of acting consistently with it by the deliberate choice “to stop associating with

others and shun all society” (MM 6:236). For Kant, “the unconditional and first duty of

people in general… is to be found in a society only insofar as it is in the civil constitution, that

is, constitutes a commonwealth,” but this duty is “unconditional” only on the assumption that

these people “cannot help mutually affecting one another” (TP 8:289, emphasis added).

As a matter of fact, however, even though space is “infinite” (CPR A25/B29), human

beings exist on a bounded or finite spatial plain: the globus terraqueus. This immediately

alters the implications of the duties associated with external freedom. Kant is right to make

so much of this seemingly peripheral observation: “the spherical surface of the earth unites

all the places on its surface; for if its surface were an unbounded plane, people could be so

dispersed on it that they would not come into any community with one another, and

community would not then be a necessary result of their existence on the earth” (MM

6:262).41 When finite, embodied rational agents exist on a bounded spatial plain, it is not

40 The “impossibility” here is nomological because the reliable avoidance of physical proximity in an
infinite spatial plain depends on there being a law-of-nature constraint on the velocity of translational
movement, such as the speed of light. In this context, “reliability” means that physical proximity can always be
avoided independently of the quantity and magnitude of the finite beings who coexist in space.
41 Notice that “necessary” here is not intended as an empirical observation, as if proximity just made it
more likely that people would actually form communities. Kant’s point is that a bounded physical plane makes

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only nomologically possible that they may come to develop relations of domination: more

importantly, they cannot reliably avoid such relations by perpetually feeing each other’s

company.42 There is only so much space that can be put between any two of them and thus

the antecedent of the conditional duty to guarantee people’s independence by institutional

means under conditions of proximity is satisfied by their coexistence on earth.43 For all finite

rational beings who coexist on a bounded physical plain, the duties of rightful honor and of

not dominating others entail a duty to create the institutions necessary to guarantee their

external freedom. There simply is no other way to reliably protect such agents’ individual

spheres of external freedom.44

community morally necessary. Consistently with this, Kant extends the argument for the duty to institute a
civil condition beyond the nation-state: “Since the earth’s Surface is not unlimited but closed, the concepts of
the right of a state and of a right of nations lead inevitably to the idea of a right for a state of nations (ius gentium)
or cosmopolitan right (ius cosmopoliticum)” (MM 6:311).
42 The avoidance strategy to prevent relations of domination is not reliable in a bounded physical plain
because whether it can work or not depends the quantity and magnitude of finite beings around (see p.
387n40). Given enough finite beings to populate every inch of the earth, and assuming that their deeds will
involve more than merely rotational movements, they will in fact interfere with each other (and if they can
interfere, they can a fortiori do so in a dominating manner). Independence from the magnitude and quantity
of finite beings is important to the Kantian argument because such contingent empirical facts should have no
bearing whatsoever on the content of our moral obligations understood as categorical imperatives. Because
the avoidance strategy is viable only provided certain empirical conditions obtain, it is a hypothetical
imperative at best. By contrast, morally requires actions (like that of instituting a state) must be categorically
obligatory and hence invariant over the (contingent) number of finite agents that there can be.
43 This is, I think, a more faithful reconstruction than Bielefeldt’s: “Kant’s philosophy of right thus has a
dual basis: whereas its normative justification refers to the equal dignity of every human being as a morally
autonomous subject, the factual necessity of an order of right rests on the empirical circumstances of human
beings in their social coexistence” (1997, pp. 540-542). Aside from Bielefeldt’s confusion of autonomy and
dignity (see p. 330n41), I think it is misleading to talk of a “dual basis” in Kant’s argument. Normatively
speaking, there is only one basis for Kant’s philosophy of right: the demands of humanity as they apply to finite
rational agents. The “empirical circumstance” of the earth as a bounded plain simply satisfies the antecedent
of the already established conditional right to create the institutions that guarantee everyone’s external
freedom. In any event, the need for such institutions is far more than a merely “symbolic expression of the equal
dignity of all human beings as morally autonomous subjects” (op. cit., p. 542).
44 Of all commentators on Kant’s political though, none has more perceptively seen the significance of
space for his overall argument than Arthur Ripstein: “[Kant] argues that both justice and law are required for
any finite and embodied free beings that interact with one another… their purposes and pursuits could be
incompatible. The possibility of incompatibility is modified further by the contingent fact that we are embodied
rational beings that are able to use things other than our own bodies for setting and pursuing our purposes,
and the still further contingent fact that the earth on which we live is a finite sphere” (2012 [2003], p. 44).
I concur with most of Ripstein’s analysis. What I have tried to do in this section is untangle the distinct logical
roles of the transcendental fact of (spatial) finitude versus the admittedly contingent fact of the earth’s surface

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We have already seen that the salient feature of moral duties associated with external

freedom is that they are also coercible rights. It follows, then, that human beings are not only

morally required to create the institutions necessary to guarantee their external freedom;

this is also a coercible right that they possess against one another. Now it does not follow

from this that every human being must go out of his or her way to actively seek others whom

they can coerce into forming such institutions. Kant’s point is subtler: we ought to create

those institutions along with people with whom we interact, or are likely to interact, as a

matter of course. We must not endure living alongside others in a “state of nature,” but not

for that reason are we allowed or invited to actively seek people with whom we wouldn’t

otherwise have come into proximate contact in order to conscript them into our institutions.

Kant is therefore consistent in upholding the obligation to create shared institutions while

also rejecting colonialism and conquest: “the injustice [civilized, especially commercial

states in our part of the world] show in visiting foreign lands and peoples (which with them

is tantamount to conquering them) goes to horrifying lengths” (PP 8:358). The problem with

such expansionistic projects is that the pre-condition of possible relations of domination

(spatial proximity) is made true by the conqueror, who did not have an antecedent need to

recruit the conquered into a shared institutional framework for the sake of protecting

external freedom.45 “[W]hen neither nature nor chance but just our own wills brings us into

as a bounded physical plane. The former is both necessary and sufficient to account for the inference that our
“purposes and pursuits could be incompatible,” but only the latter warrants the conclusion that we are
therefore morally required to institute law and justice in order to live consistently with the demands of external
freedom. Finite agents whose “pursuits could be incompatible” are under no obligation to bring about a civil
condition for as long as they can reliably avoid proximity to each other (in the sense of “reliably” explained in
p. 387n40).
45 The fact that conqueror “makes true” the proximity condition that triggers the duty and coercible right
to live under common institutions vitiates its claim of right vis-à-vis the conquered. The case has the same
structure as G.A. Cohen’s famous Kidnapper’s Argument. A moral claim pressed by a person against another

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the neighborhood of a people that holds out no prospect of a civil union with [us], we should

not be authorized to found colonies, by force if need be, in order to establish a civil union

with them” (MM 6:266).

Kant’s argument is quite strong: human beings on earth are obligated to create a

common institutional framework in order to protect each other’s spheres of external

freedom. But the conclusion is also empty as it stands. For we do not yet know what exactly

this “institutional framework” ought to be.

At this point, Kant’s case for the moral necessity of states turns on his theory of

“acquired rights.” The point of the theory of acquired rights is to answer the crucial question

of what is the legitimate extent or scope of a person’s external freedom and, by extension, to

determine what sort of institutional framework is required to enable everyone’s equal

enjoyment of it. We cannot know what institutions are needed in order to comply with the

demands of external freedom until we can ascertain what is to be rightfully “mine and thine.”

I have used the image of a “sphere” of external freedom on purpose: figuratively, the question

now is what the radius of that sphere ought to be for each individual person. 46 We ought to

raise this question because “the doctrine of right wants to be sure that what belongs to each

“changes its aspect when its presenter is the person, or one of the people, whose choice, or choices, make one
or more of the argument’s premises true” (2008, pp. 38-39).
46 I follow Kant’s lead in illustrating certain normative concepts through mathematical models: “The law
of reciprocal coercion necessarily in accord with the freedom of everyone under the principle of universal
freedom is, as it were, the construction of that concept, that is, the presentation of it in pure intuition a priori,
by analogy with presenting the possibility of bodies moving freely under the law of the equality of action and
reaction” (MM 6:232).

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has been determined (with mathematical exactitude)” (MM 6:233). In Kant’s view, the only

possible way to draw and legitimately enforce the boundaries between “mine and thine” is

by instituting a state.47

For starters, we know that certain courses of action must be excluded from a person’s

legitimate sphere of external freedom—namely, those that would hinder someone else’s

independence. As Hodgson correctly points out, “there is no general right that others not

interfere with one’s choice—only that they not interfere with one’s choices insofar as these

are consistent with universal freedom.”48 Indeed, in Kant’s canonical formulation, the right

to independence has a built-in interpersonal consistency condition: “Freedom

(independence from being constrained by another’s choice), insofar as it can coexist with the

freedom of every other in accordance with a universal law, is the only innate original right

belonging to every man by virtue of his humanity” (MM 6:237, second emphasis added).

Echoing Rousseau, Kant insists that a civil condition proper wherein everyone enjoys a

legitimate sphere of external freedom involves abandoning the “unconstrained” or “wild”

freedom (IUH 8:22) of simply doing what one wants. But contrary to Hobbes’s view (and in

line with Rousseau’s), this must not be seen as a loss. For the freedom to do as I wish has no

moral value at all. Only “freedom under external laws” is truly deserving of the name and

47 On the interpretation I develop here, the role of property in Kant’s argument is to specify the
institutional framework required for the equal enjoyment of external freedom. That private property
exacerbates the possibility of physical conflict or relations of domination among persons is only a by-product
of Kant’s theory of acquired right. Property certainly does that, but it adds nothing to what we have already
inferred from the mere fact of human embodiment. With property rights in the picture, the nomological
possibility of relations of domination is overdetermined. Contrast this approach with Ripstein’s (2012 [2003],
p. 44; 2009, p. 60) and Waldron’s (1996, pp. 1548-1554), both of whom emphasize the way in which claims of
private property increase the likelihood and intensity of practical conflict in a “state of nature.”
48 Hodgson 2010, p. 800n24.

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“independence from laws” is nothing but “savagery” (LP 9:442). 49 And so, “one cannot say:

the human being in a state has sacrificed a part of his innate outer freedom for the sake of an

end, but rather, he has relinquished entirely his wild, lawless freedom in order to find his

freedom as such undiminished, in a dependence upon laws, that is, in a rightful condition”

(MM 6:316). Still, to say that hindrances to another’s external freedom are excluded from

the scope of one’s legitimate domain of independence is far from specifying what is allowed

“within” it.

The spatial analysis of external freedom accounts for the first part of Kant’s answer

to this question. If there is to be a protected sphere of external freedom at all, it must at the

very least include non-dominated control over one’s body. For the capacity to externalize an

intention as deed in the world will always involve, if nothing else, doing something with (or

through) one’s body.50 As Arthur Ripstein explains, “me” and “my body” are the same thing

from the point of view of right: “your body simply is your person,” inseparable from a human

being’s “purposiveness” as far as any third party is concerned.51 In the case of finite rational

agents, we cannot say that the person, the “I,” “owns” his or her body; rather, the person, qua

phenomenon, is his or her own body. This is obvious when things are considered from a

49 Since Kant attributes no intrinsic value to this “wild” freedom (freedom as mere non-interference, akin
to Rousseau’s “natural freedom”), it is misleading to say that “On Kant’s view… a justified restriction of freedom
remains a restriction of freedom” (Hodgson 2010, p. 812). Kant’s republican notion of external freedom as non-
domination is inherently, and deliberately, moralized; the rule of law that limits my “wild” freedom does not so
much “restrict” as it actually constitutes my external freedom proper (see p. 385n36 on this point as well). The
only sense in which Hodgson’s claim can be true of Kant is tautological: a justified restriction of “wild” or
“lawless” freedom remains a restriction of “wild” or “lawless” freedom—but qua restriction of that sort of
freedom, it constitutes no normative loss at all for the individual.
50 Where not doing anything deliberately also counts as “doing something with one’s body.”
51 Ripstein 2009, p. 142. Ripstein’s preferred term, “purposiveness,” is equivalent to Kant’s “humanity.”
Hodgson makes the same point: “having control over my body is essential to my ability to set and pursue ends”
(2010, p. 811), where that ability is, again, identical with Kant’s “humanity.” The use of the more natural term
“purposiveness” fits Kant’s use of “humanity,” e.g.: “The capacity to set oneself an end—any end whatsoever—
is what characterizes humanity (as distinguished from animality)” (MM 6:392).

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third-person or external point of view. My body simply is the way in which I become

manifest to others, my “noumenal self” being inaccessible to them. In this way, the duty to

respect “humanity” and independence among finite rational agents must involve, at the very

least, respecting every person’s sovereign control over his or her own body. The Innate Right

to Freedom therefore includes the right to one’s bodily integrity just in virtue of our

phenomenal existence in space.

The right to the sovereign control of one’s body is a “natural” right in the sense that it

is coercible even in a “state of nature” understood as a world without the institutions

necessary to guarantee the equal enjoyment of everyone’s legitimate sphere of external

freedom. The physical contours of the body are, Kant seems to think, plain and

uncontestable, and there cannot be equally valid and competing claims to control over

someone’s body. Bodies come in to the world as always already being someone’s. Hence,

there is no need to determine anyone’s right to his or her own body by some positive or

affirmative act of any kind. Bodily sovereignty is thus an “innate right” because it “belongs

to everyone by nature, independently of any act that would establish a right” (MM 6:237). Of

course, Kant is aware that there are tough cases involving the spatial contours of the body,

as indicated by his distinction between “integral” and non-integral body-parts, such as one’s

hair (MM 6:423).52 Perhaps these “boundary” issues are serious enough that bodily

sovereignty is not a “natural” right after all and requires as much “affirmative” specification

as property rights. As Japa Pallikkathayil has persuasively argued, “we are thoroughly

political beings” and “even our rights to our own bodies are politically constructed.”53 If her

52 See Ripstein 2009, pp. 142f for helpful commentary on this point.
53 Pallikkathayil 2017, p. 35.

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argument is correct, then “bodily rights can do the same work in justifying the establishment

of the state”54 as Kant’s “acquired” rights purportedly do, and Kant’s theory of the state is all

the stronger for it. Though I find Pallakkathayil’s argument convincing, I will set it aside and

follow Kant’s own line of thought, which assumes—rather plausibly—that we almost always

have a pretty good sense, a sort of instinctive grasp, of the contours of other people’s bodies,

of what literally counts as “them” in the phenomenal world.

Because what counts as my body is (almost always) a plain, public fact and, in

addition, because the duty to respect it follows analytically from the Innate Right to Freedom

of finite rational agents, every person has the legitimate authority to unilaterally enforce

sovereign control over his or her own body. If B did not have the right push A away as soon

as B noticed that A was about to forcibly tie B’s hands and feet, B’s entitlement to being

externally free would be practically empty and inert. Whatever else follows from it, the

Innate Right to Freedom entitles every rational agent to hold his or her ground, literally. And

to the extent that doing so involves coercing another—coercing the putative interferer—,

this kind of unilateral enforcement is perfectly authorized as a “hindering of a hindrance to

freedom.” 55

54 Op. cit., p. 46.

55 I therefore disagree with Flikschuh otherwise excellent analysis of Kant’s theory of rights (2008), for
she neglects the “natural law” core of Kant’s Innate Right to Freedom as it applies to an agent’s body. According
to Flikschuh, “In Kant’s pre-civil condition individuals have valid claims to Right (Recht) but lack relevant
enforcement powers” (p. 376). She qualifies the view by pointing out that “To say that there are no natural
rights in the Kantian pre-civil condition is not to say that there are no morally valid claims to Right in that
condition… Kant is not a positivist about rights” (p. 383). But this is not Kant’s view, in fact. Flikschuch
disregards Kant’s (definitional) thesis that a valid claim of right is always eo ipso coercible. There is no such
thing as a valid claim of right that nobody can coercively enforce, since coercibility is precisely what makes any
given claim a claim of right. Flikschuh, like most commentators, confuses a moral entitlement with a claim of
right; only the former can be analyzed or understood independently of its enforceability (see p. 382n30), as
Kant clearly states: “right need not be conceived as made up of two elements, namely an obligation in
accordance with a law and an authorization of him who by his choice puts another under obligation to coerce
him to fulfill it. Instead, one can locate the concept of right directly in the possibility of connecting universal
reciprocal coercion with the freedom of everyone” (MM 6:232). Consistently with inherent coercibility of

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Now sovereignty over one’s body is doubtless necessary, but also plainly insufficient

to constitute an adequate sphere of external freedom. Our rational purposiveness, our

humanity, will more often than not involve using objects in the world in the pursuit of our

ends. B cannot write a book with his body alone; he needs various objects—pen, paper, desk,

chair—to be able to meaningfully pursue that end. If we were to subtract from the set of our

possible ends all those which necessarily involve using external objects, we would be left

with an impoverished, almost negligible, sub-set of possible courses of action that only

require the “use” of our own bodies. Any account of the legitimate scope of external freedom

must make room for the use objects as means to our ends; the alternative would be a radical

and unacceptable decimation of our rational purposiveness.56

rights, Kant departs from legal tradition in rejecting the very idea of a jurisdiction of equity—a perfect example
of an allegedly non-enforceable claim of right—as self-contradictory (MM 6:234-236).
Pace Flikshchuch, Kant clearly believes that there are at least two claims of right that are unilaterally
enforceable in the state of nature: the Innate Right to Freedom in one’s own body and the right to bring about
a civil condition under conditions of natural proximity to others. Kant is emphatic that “a unilateral will cannot
put others under an obligation they would not otherwise have” (MM 6:264), but these two cases are different:
the enforcement in question has a perfectly determinate content that is morally binding on the coerced party
independently of the coercing party’s “unilateral” act of enforcement. With regard to the Innate Right to
Freedom in one’s own body, Kant even says at one point that “Self-defense in the statu naturali is the single
casu necessitates ad agendum (permissionis) [a case of necessity to act (permissive)]” (RPR 7810, 19:523).
(When Bielefeldt claims that “For Kant, even in the state of nature people possess legal claims against one
another” (1997, p. 548), he presumably has in mind only the natural claims of right of bringing about a civil
condition or holding one’s physical ground. If he has acquired rights in mind, then this is certainly false: in the
state of nature, not even the content of an acquired-right claim can be settled, much less can it be enforced. See
also Varden 2010, p. 337, and Pallikkathayil 2017, pp. 37-39, on the content-indeterminacy of acquired-rights
claims in the Kantian state of nature.)
Flikschuh’s denial of any enforceable natural right in the Kantian state of nature has the implication
that the right to form a civil condition is no right at all, despite Kant’s unambiguous statements to the contrary:
“A civil constitution, though its realization is subjectively contingent, is still objectively necessary, that is,
necessary as a duty. With regard to such a constitution and its establishment there is therefore a real law of
natural right” (MM 6:264, emphasis added), on the basis of which “I can coerce him either to enter with me into
a condition of being under civil laws or to leave my neighborhood” (PP 8:349n). There is in Kant an irreducible
natural law core at the foundation of his otherwise positivistic philosophy of right, not unlike H.L.A. Hart’s view
(1955; cf. Hodgson 2010, pp. 794-795). For Kant, “a natural law would still have to precede” any system of
positive laws” (MM 6:224) and, consequently, “the statutory laws obtaining in [a civil] condition cannot infringe
upon natural right” (MM 6:2576).
56 Seen this way, the requirement that we be able to use things in pursuit of their purposes is not a
“contingent” fact at all, as Ripstein believes (2012 [2003], p. 44). Our need to use external objects is, for Kant,
essential to the exercise of our finite rational agency.

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As a matter of fact, what Kant needs to show is not just that we are allowed to “use”

objects in pursuing our ends. Our rational agency demands more: we ought to be able to use

them in a certain way. Consider, again, B’s project of writing a book. Clearly, B’s end is a

complex one, as it involves various discrete actions that jointly constitute “writing a book,”

and those actions take place over an extended period of time.57 When our ends have that

kind of complexity—and virtually all our meaningful ends do—, the usability of objects that

are instrumental to pursuing them must be such that the objects remain accessible to us for

as long as we might need or want to avail ourselves of them. More to the point, the objects

must remain available for our individual use independently of the will of others. Otherwise,

the attainability of our individual projects would be subject to the will of others and we

would be externally unfree in pursuing them. Independence therefore calls for the

possibility of private property over objects in the world so that I may count on their being

available to me, or being “mine,” even while I am not actually using them.58

I have spoken of “objects in the world” as if any phenomenal (i.e., spatio-temporally

individuated) entity could be used as a means to one’s ends. But this is not quite right. In

57 I take it that the core cases that display our rational purposiveness are precisely such “complex”
actions, as opposed to the artificially simple examples typically examined in contemporary philosophy of action
(e.g. Davidson’s “turning on the light,” 1980a, p. 6). It is no accident that Kant’s emphasizes the highly complex
end of developing a character, or becoming a certain kind of person, as the ultimate expression of our
“humanity”: “to have a character signifies that property of the will by which the subject binds himself to definite
practical principles that he has prescribed to himself irrevocably by his own reason. Although these principles
may sometimes indeed be false and incorrect, nevertheless the formal element of the will in general, to act
according to firm principles (not to fly off hither and yon, like a swarm of gnats), has something precious and
admirable in it; for it is also something rare… He who has character derives his conduct from a source that he
has opened by himself” (A 7:292-293); “Therefore, in order to assign the human being his class in the system
of animate nature, nothing remains for us than to say that he has a character, which he himself creates, insofar
as he is capable of perfecting himself according to ends that he himself adopts” (A 7:321-322).
58 Notice that this analysis is not an argument for the view that I should be allowed to own anything that
would serve my ends. The conclusion is much narrower, negative in character: it cannot be the case that finite
rational agents cannot come to own things in the world. Kant is only interested in justifying the normative
possibility of any particular person coming to acquire a property right over any particular thing. Everyone is
eligible to become an owner, and every object is liable to being owned. Who in fact owns what is beside the
point, provided that everyone has the opportunity to become a property owner (see p. 444n26).

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Kant’s phenomenal ontology, there are actually two fundamentally different kinds of

“objects”: persons and things. A person is a phenomenal object that is also a subject, that is,

a being endowed with “Moral personality” or the capacity to set and pursue ends (MM

6:223). Persons are simply finite rational beings who encounter each other in the

phenomenal world as bodies or “objects” that somehow manifest the behavior characteristic

of “humanity” or self-conscious intentionality. Seen from the “outside,” an object that is also

a person is one that can be “regarded as the author of its effects[s],” that is, as intervening in

the spatio-temporal continuum intentionally. Kant’s use of the term “person” is “forensic,”

as Locke would put it: “A person is a subject whose actions can be imputed to him” (ibid.).59

The second kind of phenomenal objects in the world is mere things, to which no

intentionality, much less imputability, can be ascribed: “A thing is that to which nothing can

be imputed” (ibid.). Rocks do not do things; persons do. Rocks cannot be blamed for

anything; persons can. Rocks cannot be resented for what they “do;” persons can, and

sometimes ought to be.60

59 See Chapter 3.1 for the Lockean idea of the person. To say that a person’s “actions” are imputable is
not to say that the effects of any causal chain of events involving a person are imputable. Thence the important
legal distinction between dolum and culpa and their correlatives, wrong and harm: “An unintentional
transgression which can still be imputed to the agent is called a mere fault (culpa). An intentional transgression
(i.e., one accompanied by consciousness of its being a transgression) is called a crime (dolus)” (MM 6:224).
Because harm is unintentional, and intentions are all that matters to the ethical evaluation of actions, Kant
emphatically states that the category of harm as such is ethically inert. Writing against Constant, he argues that
he “confused an action by which someone harms (nocet) another by telling a truth he cannot avoid admitting
with an action by which he wrongs (laedit) another. It was merely an accident (casus) that the truthfulness of
the statement harmed the resident of the house, not a free deed (in the juridical sense)… Thus in telling the
truth he himself does not, strictly speaking, do the harm to [= wrong] the one who suffers by it; instead, an
accident causes the harm” (RL 8:428). A person’s involvement in a causal chain of events is only imputable
when the person “contributes” to it as an author or “causa libera” (MM 6:227), as opposed to being an
unintentional causal lever caught up in a succession of natural events leading up to some (unintended) effect.
60 Kant’s idea of personality, like Hobbes’s, is perfectly consistent with the Strawsian criterion for
persons as possible targets of reactive attitudes (see p. 106n20). Notice that non-rational animate objects like
animals fall under the category of “things” for Kant (see p. 402n67).

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We know that a direct entailment of the Formula of Humanity as it applies to finite

rational agents is that we all have a moral duty not to interfere with others. We cannot treat

beings who are also endowed with humanity “merely as a means,” as if we were their domini.

So the category of persons is excluded from the objects that we ought to be allowed to use in

the sense of owning.61 There is, however, an interesting difficulty for Kant on this point.

Given that we can only encounter other persons in the world as bodies, that is, as extended

objects in the natural world, how are we to tell which bodies are persons and which are mere

things? Which extended bodies are to count as belonging to the constituency of beings with

whom we (can) stand in reciprocal normative relations?

Kant does not have a principled solution to this problem, and understandably so in

light of the doctrine of Transcendental Idealism. An extended object in space is a person just

in case it has “moral personality,” that is, if and only if there is a “noumenal self” that stands

“behind” the sensible body, so to speak. But theoretical reason gives us no access to the

noumenal realm in general, certainly not to someone else’s “noumenal” personality.

Theoretical reason does not allow us to infer conclusively of any particular phenomenon that

it instantiates the property of humanity, and so that it is for certain an object of moral respect,

i.e., a person rather than a thing. All that we can do is assume that behind every “homo

61 Of course, we can use other people—provided we do not use them “merely as a means.” The Kantian
justification of contract law lies precisely in the possibility of simultaneously using someone and treating the
other person as an end in itself. That is why “someone could put himself under obligation to another person,
by contract to let and hire (location conductio), to perform services (in return for wages, board or protection)”
but not to become “a subject (subiectus)” or “a bondsman (servus)” (MM 6:330).
The normative role of consent in Kant’s philosophy of right is to make the use of another person
consistent with his or her humanity, hence Kant’s analysis of a contractual agreements as the joint exercise of
the parties’ purposiveness or humanity: “An act of the united choice of two persons by which anything at all
that belongs to one passes to the other is a contract” (MM 6:271). The contract, as structured by the parties’
“united will,” is a temporary act of incorporation of sorts: “that which transfers what is mine to the other is not
one of the two separate wills (promittentis et acceptantis), but their united will… Transfer is therefore an act
in which an object belongs, for a moment, to both together” (MM 6:274).

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phaenomenon,” behind every extended body that is perceived as human by analogy with our

own, there is an “homo noumenon,” a “personality independent of physical attributes” (MM

6:239). Indeed, Kant admits that we cannot but conceive of finite rational agency

anthropomorphically: “In order to attach an intuition to our concepts of rational beings, we

can proceed in no other way than to anthropomorphize them” (A 7:172n). Kant would have

concurred with Huxley in that “it is wholly impossible absolutely to prove the presence or

absence of consciousness in anything but one’s own brain, though, by analogy, we are

justified in assuming its existence in other men.”62 As Arthur Ripstein has persuasively

argued, we must simply postulate of what seems to us to be a rational embodied creature

that it is in fact so: “The Universal Principle of Right is a postulate in [the sense that] it

provides a license to consider things in space and time under laws of freedom, to apply moral

concepts to empirical objects, and so establishes an entitlement that could not be established

on theoretical grounds…. The Universal Principle of Right requires us to understand

embodied human beings—both ourselves and others—as instances of the moral concept of

a person.”63 Ripstein is absolutely right on this point, since we have no way of corroborating

whether any given object in space and time is in truth a free rational agent or not. Kant lacks

a robust theory of recognition, a gap which Fichte and Hegel went to great lengths to fill.64

62 Huxley 1874, p. 565.

63 Ripstein 2009, p. 361.
64 The problem of recognition has two aspects. The first is about providing a naturalistic explanation for
the emergence of self-conscious intentionality in the world. There is only one passage where, to my knowledge,
Kant talks about this, and does not end up saying much: “The occasion for deserting the natural drive might
have been only something trivial; yet the success of the first attempt, namely of becoming conscious of one’s
reason as a faculty that can extend itself beyond the limits within which all animals are held, was very important
and decisive for his way of living” (CB 8:111-112). As for the other aspect of the problem—how can we verily
ascribe self-conscious intentionality to a physical object or body—, Kant is silent. We must simply use
anthropomorphic parameters as heuristics and assume that a body that looks like a person, behaves like a
person, and interacts with us like a person, is in fact a person. We ought to proceed this way for moral reasons
rather than on theoretical grounds, hence the status of the Universal Principle of Right as a practical postulate
when it comes to identifying the set of entities in the world to which it applies.

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Now, though persons cannot be used, there are nevertheless certain non-physical

entities associated with personality that can be used by others consistently with the

requirements of external freedom. We can use another person’s deeds when the other party

has agreed to it and, less plausibly to the modern reader, we can use other people’s “status”

under certain (statutorily defined) conditions (e.g., a guardian “using” a child’s status as

dependent minor).65 Deeds, statuses, and things exhaust the domain of entities that can be

used as “mere means” to our ends, whatever those may be: “There can be only three external

objects of my choice: 1) a (corporeal) thing external to me; 2) another’s choice to perform a

specific deed (praestatio); 3) another’s status in relation to me” (MM 6:246). The rightful use

of these three kinds of objects of external choice constitutes the domain of “acquired rights,”

that is, of rights that extend the scope of external freedom beyond sovereign control over

one’s body.

Kant’s aim is to show that acquired rights in general are impossible in the absence of

a state as the institutionalization of an “omnilateral will.” He believes that this conclusion

follows from an adequate understanding of the conditions of possibility for “acquiring” any

of the three types of entities that we can use merely as means in exercising our rational

purposiveness. The argument for the necessity of a state’s omnilateral will can therefore be

premised on either the preconditions of the right of property (rightful use of things), or of

the right of contract (rightful use of another person’s deeds) or of the right “to persons akin

to rights of things” (rightful use of another person’s status) (MM 6:276). I follow most

commentators in explicating Kant’s view by focusing on to the special case of property. If

65 See p. 398n61. Status and deeds “acquired” through contract roughly fall under the category of res
incorporales in Roman law (du Plessis 2010 [1994], p. 151); they are not things, strictu sensu.

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states are necessary for there to be property rights, then Kant’s argument for the state

succeeds without the need to show how the same analysis applies to contract and status

law.66 Kant’s thesis is that private right in general—the institutional framework that makes

“acquired rights” possible—is impossible in the absence of an order of “public right,” that is,

in the absence of a state.

I have argued that a robust construal of our rational purposiveness necessarily

involves that we be able to use things in the world. Indeed, Kant insists that things must be

possible objects of use precisely because the exercise of our humanity necessitates that they

be so. Recall that theoretical reason gives us no warrant to ascribe any value whatsoever to

things in the world, and that value is entirely agency-relative. As a result, theoretical reason

does not provide any considerations against using things merely as means, for they have no

intrinsic value at all. On the contrary, to the extent that the usability of things is necessitated

by our finite rational agency, our claims to things are grounded in the only absolutely

valuable property that there is: humanity or pure practical reason. And by definition, since

things are not persons, they make no reciprocal claims on us.67 There being no reason

66 For other statements of Kant’s argument from the preconditions of private property to the need for a
state, see Rauscher (2017 [2016], pp. 15-16), Reiss (1956, p. 180), Kersting (1992, p. 348-353), Waldron (1996,
pp. 1548-1558), Pippin (2006, pp. 428-434), Korsgaard (2008 [1997], p. 239), Stilz (2009, pp. 43-56), and
Ripstein (2012 [2003], pp. 48-51, and 2009, pp. 145-181). Ripstein’s treatment of Kant’s theory of acquired
rights is especially valuable because it explains how the law of contract and the law of status, not just the right
to private property, equally justify the need for a state.
67 Kant makes this clear in a characteristically schematic chart towards the end of the Introduction to the
“Doctrine of Right.” He writes that the set of obligations or duties generated in interactions between human
beings and “beings that have neither rights nor duties,” i.e. mere things, is “Vacat, For these are beings lacking
reason, which can neither bind us nor by which we can be bound” (MM 6:241). The limits of theoretical reason
explain why Kant could not allow for the three categories of Roman res nullius that could under no
circumstances be acquired by a particular person (res sanctae, religiosae, and sacrae), for they involved what
Kant would deem to be epistemically unwarranted beliefs about the divinity’s relation to certain objects (du
Plessis 2010 [1994], pp. 152-153).
Also, since animals are “beings lacking reason” and therefore “things” (see p. 398n60), Kant rejects the
notion of animal rights: “A human being can therefore have no duty to any beings other than human beings;
and if he thinks he has such duties, it is because of an amphiboly in his concepts of reflection, and his supposed
duty to other beings is only a duty to himself. He is led to this misunderstanding by mistaking his duty with

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grounded in the demands of external freedom to treat any particular thing as off-limits for

us, our use of any such thing is right by the standard of the Universal Principle of Right (MM

6:230). To exclude any particular thing from the set of possible means we may rightfully use

would be an arbitrary restriction on our rational purposiveness. This is Kant’s “postulate of

practical reason with regard to rights”: “a maxim by which, if it were to become law, an object

of choice would in itself (objectively) have to belong to no one (res nullius) is contrary to right”

(MM 6:250). A res nullius would limit everyone’s external freedom but not for the sake of

external freedom itself, hence unjustifiably; “freedom would be depriving itself of the use of

its choice with regard to an object of choice… in other words, it would annihilate [the object]

in a practical respect… even though in the use of things choice was formally consistent with

everyone’s outer freedom in accordance with universal laws” (ibid.). I can in principle

appropriate, say, a chunk of wood in order to build a shelter; my coming to won the chunk of

wood is in no way inconsistent with other people finding and owning theirs—in fact, anyone

could have come to own this very chunk that now happens to be in my possession. By

appropriating it, I bring it into the world of normative relations; I make it mine, I make it

usable, I make it something other should not use without my permission. If the chunk of

wood was a res nullius, it would have remained forever barred from that world: it would have

been “annihilated” with respect to my and everyone else’s agency.

regard to other beings for a duty to those beings” (MM 6:442). Kant is nevertheless aware that animals are
unique among mere things in that they are “endowed with sensation and choice” (ibid.). Qua animate things,
our permissible treatment of animals must follow norms that do not apply to inanimate objects. Human beings
owe it to themselves to “refrain” from any “violent and cruel treatment of animals… for it dulls his shared feeling
for their suffering and so weakens and gradually uproots a natural predisposition that is very serviceable to
morality in one’s relations with other people” (MM 6:443; cf. also LP 9:495). For a Kantian defense of the moral
significance of “animal interests” (though not rights proper), see Korsgaard 2004.

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Using things, then, is possible and warranted from the point of view of right because

necessary for the exercise of our practical rationality. But we are interested in a specific

sense of “use.” Our rational purposiveness demands that things be available to us for our

long-term, complex projects and that our capacity to avail ourselves of them be independent

of the will of others. And these are precisely the two defining characteristics of the right to

property: that an owner’s entitlement to a thing is constant (ceteris paribus) even in the

absence of physical possession and that the owner is entitled to exclude every other person

from using the thing without his or her consent.68 As Kant puts it, “something external would

be mine only if I may assume that I could be wronged by another’s [unauthorized] use of a

thing even though I am not in possession of it” (MM 6:245, 249).69 Property rights thus

depend on the possibility of “intelligible” as opposed to (merely) “sensible” possession (MM

6:245). The entitlement to use (rather than actual using) and excludability are central to the

kind of “using” of things that is necessitated by our rational purposiveness. Consequently,

“intelligible possession (possessio noumenon) must be assumed to be possible if something

external is to be mine or yours” (MM 6:229).

Contrary to what the phrase might suggest, “intelligible possession” is not a relation

that obtains between the owner and the thing owned: “intelligible possession” is not about

“holding” but about “having” (MM 6:253). To “have” something in the sense of it being mine

is a function of the normative relation in which I stand vis-à-vis every other agent in the

world: “possession is nothing other than a relation of a person to persons” (MM6:268).70 My

68 Honoré 1993 [1961], p. 371. See p. 193n49.

69 On Kant’s distinction between “wrong” and “harm,” see p. 397n59.
70 Coherently, Kant adds that a finite rational agent who lived alone in the world could not possible come
to own anything whatsoever: “But it is clear that someone who was all alone on the earth could really neither
have nor acquire any external thing as his own, since there is no relation whatever of obligation between him,

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right to a thing is not “as if it were a guardian spirit accompanying the thing,” but “a right

against every [putative] possessor of it” (MM 6:260).71 For I can call something “mine” if and

only if “by [doing so] an obligation is laid upon all others, which they would not otherwise

have, to refrain from using the object” (MM 6:253). If owning is about the validity of an

obligation binding on everyone else not to use the thing owned without the owner’s

permission, then the possibility of acquiring a thing, i.e. of making it mine, depends on

whether I have the normative standing to impose such an obligation upon every other

person.

Kant’s claim is that, in a “state of nature,” in a society without political institutions,

nobody has that kind of standing or authority. “[A] unilateral will cannot serve as a coercive

law for everyone with regard to possession that is external and therefore contingent, since

that would infringe upon freedom in accordance with universal laws” (MM 256, emphasis

added). No single individual—no “unilateral will”—has the authority to create obligations

that bind everyone else in the absence of “public right,” which can only exist through the

state. This is Kant’s way of saying that there are no natural claims to authority and that all

as a person, and any other external object, as a thing. Hence, speaking strictly and literally, there is also no
(direct) right to a thing” (MM 6:261).
71 Kant clearly contrasts his view with Locke’s. For Locke, “Justice gives every Man a Title to the product
of his honest Industry” in such a way that rightful acquisition obtains as a function of the relation between the
owner and the thing owned (1996 [1689]), Book I, Chapter IV, §26, p. 148). “Justice” allows that this be so
because “every Man has a Property in his own Person” and, consequently, “The Labour of his Body, and the Work
of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath
provided, and left it in, he hath mixed his Labour with, and joined to it something that is his own, and thereby
makes it his Property” (op. cit., Book II, Chapter V, §27, pp. 287-288).
Kant rejects Locke’s premise—I do not “own” my body; rather, I am my body: “someone can be his own
master (sui iuris) but cannot be the owner of himself (sui dominus)” (MM 6:270; cf. Pallikkathayil 2017 for an
insightful comparison of bodily and property rights). More importantly, Kant rejects the non-relational account
of rights, obviously with Locke’s text in mind: “whoever expends his labor on land that was not already his has
lost his pains and toil to who was first. This is so clear of itself that it is hard to assign any other cause for that
opinion, which is so old and still so widespread, than the tacit prevalent deception of personifying things and
of thinking of a right to things are being a right directly against them” (MM 6:269).

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authority is conventional. Absent social conventions, every person has the same normative

standing vis-à-vis others. Here the egalitarian aspect of the Formula of Humanity and the

Innate Right to Freedom come to the fore: just as we all have the same absolute value in

virtue of our common humanity, just as individual spheres of external freedom mater

equally, so each person’s entitlement to claim any particular thing as mine or yours are in

principle the equally valid. This equality of standing vis-à-vis eligible objects of acquired

right is reinforced by the fact that ownership cannot be settled by reference to some special

relation between the putative owner and thing claimed as owned. There being no fact about

the thing that settles who has standing to acquire it, property rights are “contingent” in that

mere things are indifferent to who may own them. Unlike our bodies, it is in the nature of

mere things that they “could be mine or yours.”72 From the point of view of our individual

standing or authority and from the point of view of mere things, our competing claims to

owning one and the same object carry the exact same normative weight. This is why

property claims are inherently contestable. Therein lies the fundamental difference between

“acquired” rights and the innate right to bodily sovereignty: our bodies cannot be “mine or

yours,” for they come into the world already being my body or your body. Bodies do not

have to be “claimed,” nor can sovereign control over them be open to contestation. The

relation between external freedom and sovereign control over one’s own body is

fundamentally unlike the relation between external freedom and property rights in that the

former is not contingent at all.

72 Ripstein 2009, p. 59; see also Pallikkathayil 2017 (“This leaves only one problem that bodily rights do
not seem to face: an indeterminacy problem about acquisition,” p. 44).

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There is an obvious structural similarity between Kant’s analysis of acquired rights

and one of the defining problems of the Hobbesian state of nature. For Hobbes, every person

has a natural right to be the sole and authoritative judge of what is necessary to ensure his

or her self-preservation. But when it comes to any other form of normative judgment or

claims-making (including property claims), the absence of social conventions issues in

complete normative anarchy. Following Pettit, I characterized this Hobbesian problem as

the challenge of “evaluative indexicality.”73 In a social world devoid of social conventions,

completely contradictory normative claims are nevertheless warranted, meaning that they

are equally valid, or rather equally invalid qua inconsistent. Of course, Kant is by no means

a moral conventionalist. Kantian moral truths are fixed by standards of rationality, social

coordination rules. But duties of right, unlike those of virtue, are exactly like moral

judgments in the Hobbesian state of nature in that their content is indeterminate in the

absence of conventions; as a result, there is no way to adjudicate between competing claims

of acquired right in the Kantian state of nature. There is, with regards to claims of right, a

problem of evaluative indexicality for Kant as well. A and B may stake incompatible claims

of right pursuant to a single object that could just as well be A’s or B’s, and without social

conventions to adjudicate between them, A and B are equally right and equally wrong.

Without an institutional solution to this Kantian analogue of the problem of evaluative

indexicality, conclusive private property and acquired rights in general are impossible

among human beings.

73 See Chapter 1.3.

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In the state of nature, where nobody has the standing to place others under obligation,

the most we can each aspire to is what Kant calls “provisional” (claims of acquired) rights

(MM 6:312). We cannot survive without using things and must therefore find ourselves

staking claims to things even in a state of nature where such claims are no more than

affirmations of an individual opinion that nobody else has to heed. Our provisional rights

are what Stilz calls “subjective” rights: an “individual’s good-faith belief about his right” that

“gives him title to coerce.”74 While “provisional” rights may serve as focal points for the

distribution and regulation of property upon the creation of a civil condition, the fact is that

the sovereign is under no obligation to simply validate the pre-existing property

arrangements. “Provisional” rights are not binding at all; they are utterly defeasible claims

that simply reflect the fact that even in a state of nature, we cannot get by without using as if

they were ours.75

What, then, would it take for conclusive acquired rights to be possible consistently

with everyone’s external freedom? Based on the preceding discussion, we might say that an

acquired right is possible to extent that an unowned object can become someone’s property

74 Stilz 2009, p. 47.

75 For a similar view on the very thin normative role of “provisional” rights, see Waldron 1996, pp. 1565-
1566. Elisabeth Ellis has a much stronger reading of Kantian provisional rights: “Kant’s account of provisional
property rights avoids the Rousseauian specter of a wholesale redistribution of property at the advent of the
republican state” (2005, p. 132). Ellis gives significant weight to provisional rights because she thinks that until
every human being lives under a just state, all rights are provisional yet they must still count for something,
lest Kant is forced to concede that “anything is permitted” in our “late stage of the state of nature” (ibid.). Kant
invites a reading like Ellis’s when he argues that property remains provisional “unless this contract extends to
the entire human race” (MM 6:266). But there obviously must be degrees of provisionality. In a pure stare of
nature, there is no iudex to adjudicate between any two competing rights-claims; in a world of states that is not
yet a global civil condition, there is no iudex to adjudicate between every two competing rights-claims. So yes,
strictly speaking, property rights remain provisional even in a world of states, but their residual provisionality
is a very long way from the total indeterminacy of a state of nature. It seems to me that Ellis’s reading of Kant
is pervaded by this ambiguity in the concept of provisionality, i.e., between “provisional qua lacking any iudex”
and “provisional qua lacking a single, common iudex for every human being.”

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through an (i) affirmative, (ii) determinate, and (iii) universally binding act of acquisition. 76

There must be an affirmative declaration because objects could just as well be mine or yours,

contrary to the case of a person’s sovereignty over his or her own body. People have to

publicly declare their intent to bring an object into the world of rightful relations and

transactions, for otherwise the object would remain as what it naturally is: a normatively

null entity. Furthermore, the affirmative declaration must be determinate in the sense that

the “boundaries” of what is thereby acquired ought to be settled with “mathematical

exactitude.” When I say, “This is mine,” the referent of the demonstrative “this” must be

perfectly clear to all, lest the property claim turn out to be empty qua unspecified.77 We need

rules to help us specify the content of our acts of original acquisition, for otherwise there

would not even be a clear issue to be adjudicated in cases of conflicting claims of right.

Finally, the declaration must be binding on everyone, lest it have no juridical effect at all. As

I have already explained, the essence of “intelligible possession” is that it ground an

obligation on every other person to abstain from using what I own without my consent. If

the affirmative act of acquisition fails to bring about this normative effect, it is null and void.78

76 I focus exclusively on the case of “original,” as opposed to “derivative,” acquisition (MM 6:258) because
derivative modes of acquisition invariably presuppose an institutional framework and the possibility of rightful
original acquisition. For something to be acquired derivatively by, say, contract or usucapio, there must have
been some original acquirer who brought a previously unowned thing into the domain of rightful transactions.
In Kant’s argument from a “state of nature” to a civil condition structured by the authority of the state, justifying
the possibility of acquired right is by construction tantamount to giving an account of the possibility of original
acquisition.
77 The need to specify the “boundaries” of the object claimed as property is especially salient in the case
of land. To say, “This land is mind” is insufficient: the exact coordinates of the piece of land to be acquired must
be clearly stated. The issue of determinacy means that the state of nature is problematic for deeper reasons
than the mere fact “that the mutual recognition of everyone’s legal claims does not manifest itself publicly”
(Bielefeldt 1997, p. 548). Absent public legal conventions, it is impossible to ascertain what exactly one is
claiming in the first place! In this respect, the analyses proposed by Pippin (2006) and Ripstein (2009) are
especially helpful, as they both highlight the content-indeterminacy of claims of right put forth in the state of
nature, not simply the lack of their public, i.e. univocal, recognition and enforcement.
78 The analysis of original acquisition in terms of an (i) affirmative, (ii) determinate, and (iii) universally
binding act matches Kant’s own description of the case: “The aspects (attendenda) of original acquisition are
therefore: 1) Apprehension of an object that belongs to no one… This apprehension is taking possession of an

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The possibility of an (i) affirmative and (ii) determinate act of acquisition amounts to

a coordination problem.79 Assuming that every rational agent wants acquisition to be

possible (and this we must assume per the juridical postulate of practical reason), it follows

that we are all equally in need of some convention or other to specify (i) what counts as an

admissible public declaration of acquisition and (ii) what are the standards for determining

the boundaries of the objects to be acquired. As in typical coordination problems, virtually

any convention that fixes such common standards will do. What matters to everyone is that

there be some rule; what the rule actually turns out to be is less important, provided it can

do the job. But this coordination problem is intimately related to the by now familiar

assurance problem. The Kantian state of nature is in this regard similar to Hobbes’s: “I am

therefore nor under obligation to leave external objects belonging to other untouched unless

everyone else provides me assurance that he will behave in accordance with the same

principle with regard to what is mine” (MM 6:255). As in the Hobbesian case, we assume

that every party wants (and is rationally justified in wanting) to cooperate. We all sincerely

want that some convention or other take hold, because we all stand to benefit from that being

the case. But a convention settling what counts as a valid (i) affirmative and (ii) determinate

act of acquisition can only succeed on two conditions: first, that there be a single convention

object of choice in space and time, so that the possession in which I put myself is possessio phaenomenon. 2)
Giving a sign (declaratio) of my possession of this object and of my act of choice to exclude everyone from it. 3)
Appropriation (appropriatio), as the act of a general will (in idea) giving an external law through which
everyone is bound to agree with my choice” (MM 6:258-249). The declaratio corresponds to (i) the affirmative
act requirement; the appropriatio corresponds to (iii) the universally binding effects of the act of acquisition;
and I cash out apprehension in terms of the (ii) determinateness requirement. By physical apprehension, Kant
must obviously mean doing something that serves to specify the boundaries of the object that is claimed as
property.
79 Coordination problems are situations “of interdependent decision by two or more agents in which
coincidence of interest predominates and in which there are two or more proper coordination equilibria”
(Lewis 2002 [1969], p. 24). For a similar take on Kant’s state of nature as (partly) a coordination problem, see
Westphal 2014, p. 179.

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(as in every coordination problem) and, second, that other people can be trusted to abide by

it. Without assurance, the conventional rules that would make original acquisition possible

would be doomed to fail.

The Kantian version of the problem of assurance perfectly exemplifies the way in

which Kant’s political philosophy is a sort of moralized Hobbism. For Hobbes, lack of

assurance makes it prudentially irrational for any individual to renounce private judgment

about whether a claimed object is truly his or hers or someone else’s. Conventions without

assurance are “doomed to fail” as a matter of fact and to the extent that people are rational.

But Kant’s point is stronger: lack of assurance makes it immoral for any individual to abide

by a toothless convention or defer to a third party’s opinion in cases of conflicting claims of

(acquired) right. Conventions without assurance are “doomed to fail” not only because it

would be prudentially irrational to observe them, but also for the stronger reason doing so

would contravene the Kantian duty of rightful honor. I am morally obliged not to make

myself a mere means to others, not to let myself be fooled and knowingly taken advantage

of. Kantian rightful honor is at heart a prudential as well as morally justified principle. The

Kantian demand for assurance thus encompasses but also transcends the Hobbesian

argument, as it is an unmistakably moral demand that only happens to coincide with rational

self-interest.80

80 Jeremy Waldron is also emphatic about the importance of the problem of assurance for Kant and,
therefore, about the need for a univocal solution backed by force (1996, p. 1540). But he misses the way in
which Kant goes beyond Hobbes in demanding assurance for moral, not merely prudential, reasons: “in the
absence of legal authority, we must expect that individuals will disagree about right and justice and that this
disagreement will lead to violent conflict… Stated in this way, Kant’s position is reminiscent of that of Thomas
Hobbes” (p. 1545).
Waldron also argues that “The trouble with the application of acquisition principles is not that, in
theory, no right answer exists, but that there is no basis common to the parties for determining which answers
are right (op. cit., p. 1550). But Waldron does not go far enough: the problem is that in disputes over acquired
rights in a state of nature there is no right answer at all, not even in theory! The answerability of problem of

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A single adjudicator with enforcement powers would thus solve the coordination and

assurance problems that must be overcome for there to be valid (i) affirmative and (ii)

determinate declarations of acquisition. We need, in other words, “a will putting everyone

under obligation, hence only a collective general (common) and power fill, that can provide

everyone this assurance” (MM 6:256; PP 8:375-376n). But we must not forget that there is

a third and equally indispensable condition for property rights to exist—namely, that the

affirmative and determinate act of original acquisition actually act issue in a (iii) universally

binding duty on others not to use my property, i.e., not to wrong me in relation to my

acquired rights. Because things are indifferent to who may come to own them—they could

just as well be mine or yours—, it is necessary for me to be able to acquire a thing that I

actually want to do so. My unilateral will is therefore a necessary condition of original

“mine and thine” depends on there being background conventions. Absent such conventions, there is nothing
we can intelligibly disagree about, and only a fortiori does it follow that there is no way to adjudicate between
competing claims. The Kantian state of nature is not only missing an authoritative judge: it misses even
common standards of judgment. This is the point of characterizing it as a condition of normative anarchy.
(Though, as I say in the text, this sort of problem of “evaluative indexicality” only applies to matters of right,
not to duties of virtue.)
Waldron’s view is also wrong to make so much of the likelihood of violent conflict, which is indeed
crucial for Hobbes but not Kant’s. Kant demands that there be assurance for moral reasons, and those reasons
apply with equal force to “nation of devils” and to a community of (embodied) angels. (Stilz seems to follow
Waldron on this point as well: 2009, p. 52). There need not be a single act of violence in the Kantian state of
nature for the exeundum est e statu naturali to be fully justified. The nomological possibility of practical conflict
grounded in the sheer fact of spatial finitude is sufficient for Kant’s purposes; the probability that such conflict
will actually lead to violence is beside the point. Flikschuh’s view is therefore inaccurate for the same reasons
that undermine Waldron’s insistence on the likelihood of violence: “The problem is not that humans are devils:
the problem is that they are not angels” (2010, p. 391), and so is Halldenius’: “For Kant, as for Hobbes, the
fundamental problem of the state of nature… is not merely that property claims remain undecided but that it
is a state of war” (2011, p. 172).
Pauline Kleingeld helpfully summarizes the reason why the Hobbesian emphasis on actual violence is
off the mark in the context of Kant’s philosophy of right: “Kant’s argument hinges not on the empirical claim
that human beings actually do commit violence to others but that such violence is possible, a possibility that is
given with freedom” (2000, p. 325n33)—that is, with the sort of freedom that it is in the nature of embodied
beings to (fail to) have. This point is of utmost importance because it signals the non-remedial nature of Kant’s
theory of the state. The state is necessary just because we are rational beings who exist in space and time, not
because we are psychologically or morally defective, as Ripstein (2009, 2012 [2002]) has persuasively argued.
That humanity is a “crooked wood” (IUH 8:23) is a true anthropological observation, but irrelevant to the a
priori argument of the Metaphysics of Morals for the (moral) necessity of states.

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acquisition. But the act of acquisition can only ground a corresponding obligation on all

others if I have the standing or authority to put them under obligation just because I want to

own this particular thing. Without the standing to bind others by declaring my intent to

acquire a thing, my declaration would only express a wish or aspiration without resulting in

a proper claim of right. In the state of nature, where we all enjoy equal normative standing,

I cannot unilaterally change other people’s normative landscape by putting them under

obligations simply because I want to own this or that thing. In the state of nature nobody

has the requisite authority to rightfully acquire anything.

The only way in which I could possibly be able to put others under obligation in this

way is on the assumption that my act of acquisition can be taken to be authorized by us all.

When I acquire something, I make it impossible for anyone else to claim that thing as theirs,

despite the fact that nothing about my relationship to that things gives me an indefeasible

claim to it. I can only deprive others of that possible object of external choice on the

assumption that I am authorized to acquire that object by “a will that is omnilateral, that is

united not contingently but a priori and therefore necessarily”; this is “the only will that is

lawgiving,” the only will that makes my original acquisition consistent with everyone else’s

external freedom in their equal entitlement to have acquired it in my stead (MM 6:263). Kant

is here striking an unmistakably Hobbesian note: an omnilateral will is a will whose actions

are attributable to all, a will that can rightfully be regarded as acting in our name. If my

affirmative and admittedly unilateral declaration of acquisition is authorized by an

omnilateral will which must in turn be regarded as authorized by us all, then my act of

acquisition can indeed be binding on all others. It is not my will that suddenly has the

normative power to put everyone under an obligation they did not previously have; rather,

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it is the omnilateral will that binds us all, this time backing my rightful acquisition, just as it

may tomorrow back your acquisitions and so put me the obligation not to use what you have

made rightfully yours. A “general (common)” and “powerful” will that solves the problems

of coordination and assurance will not do: it must also be an “omnilateral” will that can solve

the problem of normative authorization. This is to say that the institutions that solve the

problem of coordination and assurance must be political in nature, that is, they must

constitute a state.

And so, we at long last reach the conclusion of Kant’s complex argument for the moral

standing of states. The moral duty to respect our own as well as others’ humanity as finite

rational agents entails a commitment to valuing our individual spheres of external freedom

on an equal basis. Because the reality of the value of external freedom can only be upheld by

preventing or reversing possible or actual spatial interferences, the moral entitlement to

being external free is inherently a coercible right. Thus, external freedom becomes practical

by taking the form of two moral duties that are also enforceable rights: our rightful honor

and the obligation not to dominate others. The common core of these normative principles

is the Innate Right to Freedom, which encompasses both the natural right to the sovereign

control over our own bodies and the possibility of “acquired” rights, notably the right to

private property. In this way, the value of external freedom necessitates that conclusive

acquired rights be possible. The Innate Right to Freedom is therefore “a right to have

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[acquired] rights.”81 This in turn presupposes that we be able to acquire things through (i)

affirmative, (ii) determinate, and (iii) universally binding declarations of our unilateral

intent to make things ours. External freedom consequently necessitates that we bring about

the condition of possibility of acquired rights in general: a “general (common),” “powerful,”

and “omnilateral” will capable of imposing univocal, enforceable, and authoritative

conventions to determine with “mathematical exactitude” and uphold the boundaries

between mine and thine. And thus, in order to live in accordance with the demands of

external freedom, we are morally obligated to institute a state capable of acting in our name.

And “What kind of [moral] duty is leaving the state of nature for those outside society? It is

a coercive duty,” Kant insists—that is, a right (DTP 23:128).82

States are morally necessitated by the dimension of external freedom because only as

subjects of the “general (common),” “powerful,” and “omnilateral” will of a state can we

adequately respect and realize the full scope of one another’s Innate Right to Freedom and

live consistently with the Universal Principle of Right. “A civil constitution, though its

realization is subjectively contingent, is still objectively necessary, that is, necessary as a

duty” (MM 6:264) because “only in a civil condition can something external be mine or yours”

(MM 6:256). Only in a civil condition can our entirely defeasible “provisional” claims of right

become conclusive acquired rights.

81 Hodgson 2010, p. 817.

82 Since conclusive acquired rights are only possible in a civil or rightful condition structured by the
“omnilateral” will of the state, it is not Kant’s view that “the civil condition itself does not add anything
substantially to people’s duties in relation to each other” (Halldenius 2011, pp. 171-172). On the contrary: our
rightful honor allows us to defer and respect other people’s claims of right if and only if there is a state capable
of providing assurance to us all. The state radically transforms our normative landscapes, introducing binding
obligations of right with respect to one another. It is true, of course, that “Kant’s state of nature—contrary to
Hobbes’, for example—is already fully moral,” but what morality requires of us in terms of interpersonal
relations changes substantively as soon as the social world becomes a civil condition precisely because only
then are conclusive acquired rights possible.

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8.3 Politics as Critique of Freedom

I have advanced an openly moralized interpretation of the foundations of Kant’s

political philosophy, particularly of the normative significance of the Innate Right to

Freedom and the moral duty to exit the state of nature and bring about a civil condition. I

take this to be the most faithful approach to Kant’s own understanding of his political project.

“That entry into civil society is one of the first duties no one has yet properly seen” (LF

27:1337)—this is the philosophical gap in the contractualist tradition that he was primarily

concerned with. Moreover, pursuing this line of interpretation highlights one of the central

contentions of Part III: that Kant draws strikingly Hobbesian conclusions from distinctively

moral (and so un-Hobbesian) premises. But my emphasis on the continuity between ethics

and right naturally raises the question whether one must accept the entire apparatus of

Kant’s moral philosophy in order to make sense of, and perhaps accept, his political theory.

In my view, while one must understand how Kant’s commitment to the Innate Right

to Freedom, the Universal Principle of Right, and the moral necessity of states rests on his

metaphysics of morals and the doctrine of “inner” freedom, the institutions he proposes to

secure our external freedom do not strictly speaking presuppose his moral philosophy.

Louis-Phillippe Hodgson makes the point best: “It is unclear to me how one who accepts

Kant’s argument for the Formula of Humanity could reject the argument I have presented for

the right to freedom… But this does not mean that the converse also holds—that accepting

the argument for the right to freedom commits one to Kant’s moral outlook.”83

83 Hodgson 2010, p. 801.

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As I explained in Chapter 7.3, as soon as we consider human beings in relation to

others on the dimension of external freedom, we are allowed to abstract from the

requirements of autonomy. The demands of external freedom can be explicated without

reference to the ends people pursue or the reasons why them.84 Politically speaking, we are

not in the business of making people autonomous or moral; all we care about is ensuring that

they can act freely without subjection to the arbitrary will of other agents. On that account,

“the concept of an external right as such proceeds entirely from the concept of freedom in the

external relations of people to one another and has nothing at all to do with the end that all

of them naturally have (their aim of happiness) and with the prescribing means for attaining

it” (TP 8:289).85 This is why Kant is keen to highlight the possibility of constructing the

philosophy of right in complete abstraction from the requirements of autonomy. It is in this

spirit that he often acknowledges that the moral duty to form a civil condition is also the

prudentially rational thing to do for finite agents like us. When he writes in that vein, Kant

does little more than rehearse a familiar Hobbesian line of thought: “now nature comes to

the aid of the general will grounded in reason, revered but impotent in practice, and does so

precisely through those self-seeking inclinations” (PP 8:366) in virtue of which “the human

being is constrained to become a good citizen even if not a morally good human being. The

problem of establishing a state…is soluble even for a nation of devils (if only they have

understanding)” (MM 6:307-308). Kant’s point is that the practical necessity to leave the

84 Korsgaard makes the point very clearly: “Insofar as a given action is regarded as a duty of justice, the
duty just is to do it. The doctrine of right… is completely unconcerned about our motives… In the sphere of law
and justice, “this is your duty” means “we have the right to demand this of you.” This stands in sharp contrast
to the sphere of ethics… There “this is your duty” means “insofar as you are autonomous, you demand this of
yourself”” (2008 [1997], p. 237).
85 When Kant talks about the “end that all of them naturally have,” i.e. happiness, he means any and all
ends that are function of an agent’s subjective motivational set. Happiness simply is “this idea that all
inclinations unite in one sum” (G 4:399).

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state of nature is rationally overdetermined: it is required by our moral commitment to the

value of external freedom, but also by our enlightened self-interest. Like the idea of rightful

honor, Kant’s exeundum est e statu naturali is at once a categorical imperative of morality

and a hypothetical imperative of prudence. When we look at things from the dimension of

“inner” freedom, we ought, morally, to bring about a state; but if we set those considerations

aside and simply assume that rational devils have an interest in their own independence, we

would see that we also ought, prudentially, to live alongside others in a civil condition. Self-

interest alone would justify Kant’s institutional proposals for a social life that can make us

all equally and consistently free in the external sense, even though a full grasp of his political

thought can’t afford to miss the moral depth of his justification for the existence of states.

On the interpretation I am articulating, there is a clear argumentative path from

Kant’s moral philosophy to his political theory, and this link cannot be severed without

seriously misrepresenting the systematicity of Kant’s practical philosophy as a whole.

Without a clear moral case for the value of external freedom, the Kantian would have no

compelling moral reason to be concerned with, let alone endorse, the institutional scheme

Kant proposes as the necessary means to the equal enjoyment of independence or non-

domination. But a non-Kantian may well concede the political preeminence of the value of

independence or non-domination for very different reasons. Even though Kant is committed

to his own politics given the moral doctrines he espouses, “there is nothing problematic

about the reverse position—accepting Kant’s views on the right to freedom while rejecting

his moral philosophy.”86

86 Hodgson 2010, p. 801.

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Indeed, one may agree and appreciate the value of external freedom understood as

non-domination or independence for reasons other than Kant’s own. A Kantian can make

the case for Kant’s brand of political republicanism before anyone who already accepts the

value of non-domination without having to convert them to Kant’s moral doctrine. 87 In this

respect, Kant may well be seen as “developing a freestanding liberalism… that both Kantian

moralists and intelligent devils can endorse,” provided the latter also believe in the political

preeminence of the value of individual independence.88

Kantian politics thus enjoys a certain theoretical independence from what many

might see as cumbersome moral-philosophical baggage. We can evaluate Kant’s philosophy

of right from this point forward in that spirit, without further reference to the doctrine of

“inner” freedom. We can do so without distortion because Kant himself believes that the

value of external freedom is sufficient to construct a theory of politics. Political theory is

essentially a critique of external freedom: a vindication of its authority that proceeds by

unlocking its potential as a self-limiting normative principle. This is exactly the point of the

Universal Principle of Right, to make it a regulative principle of politics that the value of

87 This is exactly the argumentative strategy Ripstein adopts in Force and Freedom. He begins by stating
(correctly) that “Kant conceives of equal freedom... [as] the respective independence of persons from each
other… You are independent if you are the one who decides what ends you will use your means to pursue, as
opposed to having someone else decide for you” (2009, p. 33). Ripstein clearly sees that Kant’s conception of
political freedom is the same as Rousseau’s civil freedom, namely, freedom as independence or non-
domination. But Ripstein does not argue for this way of thinking about freedom, nor does he try to reconstruct
Kant’s own case for it. In fairness, it is not his stated purpose to unearth the moral foundations of Kant’s
philosophy of right. But without the moral background, on misses the depth of Kant’s commitment to a
republican conception of political freedom and the most important institution it calls for, the rule of law.
88 Pogge 2012 [1998], p. 95. Pogge means that Kant’s is a “freestanding” as opposed to a “comprehensive”
liberalism, in terms of Rawls’s well-known distinction. For Rawls, a political doctrine is comprehensive “when
it includes conceptions of what is of value in human life, and ideals of personal character, as well as ideals of
friendship and of familial and associational relationships, and much else that is to inform our conduct, and in
the limit to our life as a whole. A conception is fully comprehensive if it covers all recognized values and virtue
within one rather precisely articulated system” (2005 [1993], I.2, p. 13). Kant’s practical philosophy as a whole
is obviously a “fully comprehensive” doctrine, but Kant’s distinction between the dimensions of “inner” and
“external” freedom lends itself to the application of the Rawlsian contrast between freestanding and
comprehensive doctrines.

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external freedom be realized and protected equally and consistently for all persons. It is

therefore only for the sake of the interpersonal consistency of independence that we can

limit each other’s external freedom. This is the only acceptable justification for legitimate

coercion and political authority in general.89 Autonomy and its requirements are immaterial

to the argument for the institutional details of Kant’s brand of political republicanism.

What I have said here might appear to conflict with the analysis in Chapter 7.4 of the

relation between Kant’s ethics and his politics. All things considered, it may seem as if

“Kant’s political philosophy seems more than ever to be compounded of an abstract morality

not of this world and an amoral politics too much of it.”90 Yet it is perfectly consistent to

insist (as I have) that Kant’s politics only make sense against the background of his ethics,

while acknowledging, (as I do) that the rationale for his institutional program can for the

most part be decoupled from his moral arguments. Indeed, “Kant’s politics must be

understood on the basis of his morality” while it can “also be understood independently of

his morality.”91

89 On external freedom as a self-limiting normative principle, see Korsgaard 1996 [1989], p. 20, and
Hodgson 2010, pp. 794-795. The idea of a “critique of external freedom” should be understood by analogy with
the way in which Kant’s First Critique offers a non-foundationalist vindication of the authority of reason: “[Kant]
does not deify reason. The only route by which we can vindicate certain ways of thinking and acting, and claim
that those ways have authority, is by considering how we must discipline our thinking if we are to think or act
at all… Critique of reason is possible only if we think of critique as recursive and reason as constructed rather
than imposed” (O’Neill 1989, p. 27).
90 Hassner 1987 [1963], p. 603.
91 Op. cit., p. 583.

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CHAPTER 9. THE REPUBLIC OF ENDS

We must live under a state because we cannot otherwise fulfill our duties of respect

for humanity, in our person and other people’s. In Anna Stilz’s words, “only the state can

create the conditions in which equal freedom between individuals is realized.”1 What we do

not yet know is what the legitimate Kantian state is like.

In section 9.1 I argue that the state’s defining attribute is its standing as an

“omnilateral” will and that this standing is entirely independent from the actual or even

hypothetical consent of subjects. Kant’s theory of authorization works by applying the

categories of modality to the normative realm. The state is modally authorized qua morally

necessary institution. This approach explains why Kant can consistently dispense with

consent while being such a forceful defender of individual freedom. In the course of making

the case for the modal account of Kantian authorization, I also argue that Kant’s political

ontology is—like Rousseau’s—thoroughly Hobbesian and thus Kant, too, endorses the

doctrine of absolute sovereignty. What makes absolute political authority consistent with

individual independence is the rule of law. This is the fundamental condition of legitimacy:

that the state operate through universal and impartial laws per subjects’ (necessary) interest

in making acquired rights possible.

1 Stilz 2009, p. 22.

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The rule of law and the conception of external freedom as independence constitute

the core of Kant’s republicanism and set his admittedly minimalist theory of legitimacy apart

from Hobbes’s. But Kant does not go as far as Rousseau: there is no requirement that citizens

be actual co-legislators for there to be a duty of political obedience. The view I put forth in

section 9.2 is that Kant’s more demanding republican ideals—the independence of

government from the sovereign, popular sovereignty, and the “idea of the social contract” as

a test for the quality of policy and legislation—are not necessary conditions of state

legitimacy. Contrary to what many an interpreter has claimed, the “idea of the social

contract” is exactly like Hobbes’s “equity”: a non-justiciable norm that sovereigns can

(though they should not) disregard consistently with their right to perform as states.

Section 9.3 tests this interpretive proposal by applying it to one of the most hotly

debated issues in Kant scholarship—namely, Kant’s striking view on revolution. The puzzle

is simple enough. While Kant was a vigorous defender of autonomous, independent

judgment—“Sapere aude! Have courage to make use of your own understanding!” (WE

8:35)—, and voiced high ideals of republican politics, he also categorically condemned any

revolutionary activity. I reconstruct Kant’s legal, moral, and ontological arguments against

revolution to show the consistency of his position with the overall interpretation advanced

in sections 9.1-2.

9.1 Willing Omnilaterally

In Chapter 8.2 we finally arrived at Kant’s conclusion that the Innate Right to Freedom

demands (morally as well as prudentially) that we leave the state of nature and institute a

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state, where the state is conceived as a “general (common),” “powerful,” and “omnilateral”

will (MM 6:256, 263). This is Kant’s “postulate of public right”: “when you cannot avoid living

side by side with all others, you ought to leave the state of nature and proceed with them

into a rightful condition, that is, a condition of distributive justice” (MM 6:307-308). Having

established that there ought to be states, I now turn to the substance of Kant’s conception of

the state.

The first thing to notice is this: to say that the state is a “will” is just to say that it is a

person—and a “moral person” [moralische Person] to boot (MM 6:274). Like Rousseau and

Pufendorf, Kant consistently uses the phrase “moral person” to designate a plurality of

individuals who exhibit agential unity as a group. All group agents—a kind of Hobbes’s

“persons by fiction”—are “moral persons” in the Kantian sense.2 These moral persons are

supervenient entities: they cannot exist without individuals who make them up, but their

agential unity and identity is constant across variations in their actual composition. Qua

persons, states cannot be treated as mere things, nor can they be owned as property: “For a

state is not (like the land on which it resides), a belonging (patrimonium). It is a society of

human beings that no one other than itself can command or dispose of. Like a trunk, it has

its own roots; and to annex it to another state as a graft is to do away with its existence as a

moral person and to make a moral person into a thing” (PP 8:344). In terms of their logical

structure, “moral persons” exemplify the category of totality: “allness (totality) is nothing

2 Kant recurrently uses the phrase “moral person” to designate, for example, the group agent that
emerges on his conception of rightful marriage. (Recall that Rousseau does the same: see p. 229n9.) In a
Kantian marriage, “One moral person arises from two” (RPR Frag. 7880, 19:544) and the claims on the sexual
enjoyment of the other are justified in virtue of the couple’s “coalition in a moral person who has the same
duties and rights reciprocally” (DPM 23:359). Pressing the point of the ontological unity of formed by the
married couple, Kant adds that this “one moral person” is a “bodily community… (as if having only one body)”
(DPM 20:463).

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other than plurality considered as a unity” (CPR B111). When we think of an individual qua

member of a totality, and in this case of a subject in relation to the state, we cease to conceive

of it as simply part of “an aggregate ([wherein] if one member of the division is posited, all

the rest are excluded, and vice versa)” (CPR B112). Politically speaking, “The human being

was not meant to belong to a herd, like cattle, but to a hive, like the bee” (A 7:330), that is, to

a totality rather than a mere aggregate or multitude.3 The state as “will,” as “moral person,”

is a clearly an idea derived from Hobbes,4 and Kant—like Rousseau—endorses its most

important ontological implication: that a people, as opposed to a multitude, can only exist

when there is a state capable of acting in its name. As with any group agent, “By the word

people (populus) is meant the number of human beings united in a region, insofar as they

constitute a whole” (A 7:311)—where the “whole” can only display the requisite agential

unity through the state as its personator, to borrow Hobbes’s term. Kant even employs the

classical terminology of Pope Innocent’s 1246 Romana Ecclesia in explaining how the state

transforms a multitude into a people in whose name it acts. Appealing to the idea of an

“original contract”—which “is only the idea of this act,” rather than a historical event—Kant

argues that in virtue of it “everyone (omnes et singuli) within a people gives up his external

freedom in order to take it up again immediately as a member of a commonwealth, that is, of

a people considered as a state (universi)” (MM 6:315). The multitude, or people omnes et

3 The same categories of plurality, unity, and totality are used by Kant in the philosophy of history to
explain the sense in which the species as a whole is the subject of progress, rather than individual persons:
“The education of the human race, taking its species as a whole, that is, collectively (universorum), not all of the
individuals (singulorum), where the multitude does not yield a system but only an aggregate gathered
together…” (A 7:328).
4 At one point, Kant even characterizes the states as “bodies” and the “civil commonwealth” as an
“automaton” (IUH 8:25), two mechanistic images congenial to Hobbes’s conception of Leviathan as an “artificial
man” (L Int.1). On the obvious Hobbesian sources of Kant’s political ontology, see also Halldenius 2011, p.
185n25.

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singuli, becomes a people proper as soon and for as long as there exists a state capable of

personating or representing it.5

What gives unity to the people, to this plurality that is also a totality, is the fact that it

has a single agent capable of acting in its name. That is why “The civil union (unio civilis)

cannot itself be called a society, for between commander (imperans) and the subject

(subditus) there is no partnership” (MM 6:306-307). We encountered the same argument in

Rousseau’s (late) objections to Pufendorf and other theorists who conceived of the social

contract as an agreement between the people and its chiefs. True to the Hobbesian political

ontology of The Social Contract, Rousseau noticed that Pufendorf’s view (like his own in the

Second Discourse) presupposes that a people exists as such and is able to act independently

of being represented by some authority or other.6 Kant makes the exact same point: a

commonwealth is not a partnership because the people only comes into being in virtue of

being represented by the will of the state. Before there is some entity that personates the

people, the people does not exist at all as a totality. Thus, there is no antecedently existing

people (universi) with whom the state can enter into a partnership. Therefore, “The civil

union is not so much a society but rather makes one” (MM 6:307).

Kant also agrees with Hobbes’s insistence that the ontological unity of the people is

inseparable from the unitary agency of a single state. The idea that a state must have the

monopoly of force, lawmaking, and adjudication—the monopoly over the solution to the

5 Kant also invokes the idea of a multitude in the “nation of devils” version of political incorporation:
“The problem of establishing a state… for a nation of devils... goes like this: ‘Given a multitude of rational beings
all of whom need universal laws for their preservation but each of whom is inclined covertly to exempt himself
from them, so to order this multitude and establish their constitutions that, although in their private
dispositions they strive against one another, these yet so check one another that in their public conduct the
result is the same as if they had no such evil dispositions’” (PP 8:366, emphases added).
6 See Chapter 5.1 and p. 278n86.

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coordination and assurance problems of a Kantian state of nature—is a condition of

possibility of the existence of a people. There is a strict one-to-one correspondence between

a people and the state that acts in its name. The connection between the two entities (people

and state) is so conceptually close that they are most equivalent: “the whole of individuals in

a rightful condition, in relation to its own members, is called a state (civitas)” (MM 6:311),

where “state (civitas) is the union of a multitude of human beings under laws of right” (MM

6:313).7

The state is a sui generis group agent for Kant, just as it is for Hobbes. Every human

group that exhibits collective rationality is a “will” or a “moral person,” but only the state’s

will is characterized by being simultaneously “general (common),” “powerful,” and

“omnilateral” or “public.” The state is a “general” or “common” will to the extent that its

decisions are equally authoritative for and thus binding upon all its subjects, where the set

of subjects equals the entire population inhabiting the territory wherein the state has the

monopoly of law-making, adjudication, and enforcement. In a sense, the attribute of

“generality” simply restates the ontological thesis of the one-to-one correspondence

between a state and the people in whose name it acts. And Kant seems to be committed to

that Hobbesian idea, as indicated in the following analogy: “understanding certainly is of a

higher rank than sensibility, with which irrational animals can manage provisionally,

following implanted instincts, like a people without a sovereign. But a sovereign without a

7 The textual evidence overwhelmingly shows that Kant is working with the same fundamental
Hobbesian political ontology that Rousseau deploys in the Social Contract, contrary to Williams’s contention
that “Kant turns the Hobbesian formula of the subordination of the people to the sovereign body on its head”
(2010, p. 374). In the same article, Williams actually concedes the point when he addresses the rationale of
Kant’s categorical opposition to revolution: “Under an existing civil constitution the sovereign is already the
united will of the people… although we may not be direct participants in the exercise of sovereign authority we
should regard it always as though we were so” (op. cit., pp. 380-381). For an account of Kant’s political ontology
akin to the one I suggest here, see Halldenius 2011, p. 174.

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people (like understanding without sensibility) is not able to do anything at all” (A 7:196). 8

If the state were not “general” or “common” in this sense, it would be unable to lay down

univocal conventions for everyone. The will of the state is also “powerful” in that it must be

able, ready, and willing to coercively enforce its directives. Without effective force, there is

no assurance—and so the state would fail to fulfil the role that the value of external freedom

demands of it. Power and generality are necessary for the state to solve the coordination

and assurance problems that must be overcome to render acquired rights possible.

The third and most important attribute of the will of the state is that it is “omnilateral”

or “public.” To say that the will of the state is public or omnilateral is Kant’s way of saying

that the state’s acts and directives must be taken to express the “united will of the people”

(MM 6:338). There are two sides to this equation between the will of the state and “the

united will of the people.” On the one hand, the equation is an ontological truism given Kant’s

adoption of Hobbes’s one-to-one correspondence thesis. If a people can only exist to the

extent that and for as long as a state personates it, then the will of the state is trivially “public”

qua constituting the will of the people it represents and in whose name it acts. But there is

a second, deeper sense to Kant’s equation: the will of the state is the “united will of the

people” in that the former ought to be regarded as being authorized by the latter. In this

normative respect, the equation between the will of the state and the “united will of the

8 Kant’s analogy between “sovereign” and “understanding,” on the one hand, and “people” and
“intuition,” on the other, is a reference to his theory of cognition as articulated in the First Critique. A cognition
proper is a synthetic a priori judgment that is objectively real yet transcendentally ideal, and it can only obtain
when sensible intuitions are subsumed under the a priori categories of the understanding. Sensible intuitions
and concepts of the understanding are independently necessary and jointly sufficient to give rise to cognitions.
The point of Kant’s analogy is that just as “Thoughts without content are empty [and] intuitions without
concepts are blind” (CPR A51/B75), so a sovereign or state without a people is empty and a people omnes et
singuli without a state or sovereign to act in its name is aimless—in short, a multitude is no group agent at all.

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people” means that whatever the state does ought to be regarded as bearing the mark of the

authorization of the people omnes et singuli, that is, of each and every subject individually.

Kant needs an account of authorization along these lines if the state is to make

acquired rights possible at all. We have seen that the omnilateral will of the state is a

necessary presupposition of rightful acquisition, which is in turn necessitated by our finite

rational agency. Because a valid act of acquisition creates obligations upon everyone else

through a unilateral act of will (my declaration that I wish to make this thing mine), it is “a

special case of political authority”:9 it is an act that counts as rightful just in case it can be

seen as authorized by all. Only on that assumption can my unilateral acquisition validly

change the normative landscape of others, putting them under the obligation not to wrong

me by using what I own without my permission. Since nobody can claim to act “in our name”

prior to any convention that makes that so, the normative standing and effects of my

unilateral acts of acquisition depend on their being authorized by a will that does act in our

name. And so that will must somehow count as having been authorized by us all.

Recall that acquired rights are necessitated by the value of external freedom.

Logically speaking, the value of acquired rights is derivative with respect to that of external

freedom. So Kant must be very careful to show that the institutions that make acquired

rights possible are themselves consistent with external freedom. Now the state is obviously

a coercive power; it is meant to have the capacity to interfere with our actions and we expect

it to use such capacity as often as people break the rules it lays down for us all. How, then, is

the state not a dominating power itself? How is state coercion consistent with external

freedom? We must answer this question by reference to the Universal Principle of Right,

9 Ripstein 2009, p. 150.

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which sets the bar for justifiable coercion in such a way that a hindrance to my external

freedom is always illegitimate unless it counts as hindering a hindrance to someone else’s

freedom. An act of coercion wrongs me, even if undertaken by the state, if it cannot be

construed as a hindering of a hindrance to freedom. So if the Kantian state is to be consistent

with and indeed constitutive of external freedom, its coercive acts must never count as

wrongs against its subjects. This idea further supports Kant’s need for a model of

authorization that renders the state’s will “omnilateral,” because such an account ensures

that a state cannot wrong its subjects in virtue of the volenti non fit iniuria principle: “a public

will that determines for everyone what is to be rightfully permitted or forbidden him is the

act of a public will, from which all right proceeds, and which must therefore itself be

incapable of doing wrong to anyone. But this is possible through no other will than that of

the entire people itself (since all decide about all, hence each about himself); for it is only to

oneself that one can never do wrong” (TP 8:294-295, emphasis added). Kant’s point is not

that we all actually legislative together or give our individual assent to the laws, and that

therefore they cannot wrong us. Kant is not Rousseau, and the legitimate Kantian state is not

the Republic of the General Will. His point is more abstract, more in line with Hobbes’s

thinking: if the acts of the state count as being authorized by each and every one of us, then

they cannot wrong us individually for the same reason we cannot wrong ourselves. Because

this can be said only of a “public” or “omnilateral” will, “no particular will can be legislative

for a commonwealth” (TP 8:295) because a particular or unilateral will could not help but

wrong those whom it coerces.10

10 I will say more about the place of actual self-legislation for Kant in section 9.2. The idea of citizens as
co-legislators captures one way in which Kant endorses republican ideals that he nevertheless refuses to turn
into necessary conditions of state legitimacy.

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The possibility of rightful original acquisition and the consistency of state coercion

with external freedom both depend on whether Kant can explain how the state can truly be

an “omnilateral” will, how its acts can have the authority of an act imputable to the “united

will of the people.” An institutional apparatus that would count as a state by sociological

criteria may well solve the assurance and coordination problems, but it would have the right

to perform as a state if and only if its will can be regarded as omnilateral.11 Thus, an

organized monopoly of power over a given population is not sufficient to constitute a state

in the normative sense that Kant is interested in. But whence that authority? In virtue of

what can a sociologically individuated state come to have the right to perform as such?

We have already seen in Parts I and II that for Hobbes and Rousseau—and Locke, for

that matter—the state’s right to perform as such, i.e. its legitimacy, can only come from the

consent of its subjects, and that the state cannot wrong them precisely because they have in

fact consented to its rule. Whether actual, tacit or imputed, whether “weak” or “strong”

(depending on the background account of voluntariness), whether one-time or recurrent,

the fact remains that for Hobbes and Rousseau there is only one valid mode of political

authorization: the consent of the governed. The very image of a “social contract” or a

“political covenant” is meant to single out consent as an indispensable condition of legitimate

It should also be noted the, albeit similar, there is a difference between Kant’s and Hobbes’s grounds
for deploying the volenti principle in the context of the state-subject relation. When Williams, for instance,
claims that the Kantian sovereign “must be conceived as incapable of doing anyone any harm... because its
sovereign power emanates from the will of every individual, and no individual wills harm to himself” (2010, p.
374), he seems to mean that every individual consents by, e.g., acting as an actual co-legislator, and this is not
Kant’s view. The volenti principle applies to Kant’s analysis by reference to what pure practical reason
authorizes, not as a function of what individual people actually authorize or consent to. This is part of the modal
interpretation of authorization for which I argue in the main text in the next few paragraphs.
11 Given this crucial condition, it is not true that Kant’s absolutism commits him to the view that “a subject
is obligated to obey any particular or empirical, self-acclaimed public authority, regardless of how objectionable
is its exercise of power” (Varden 2010, p. 347n44). Whether a “self-acclaimed public authority” is in fact a
“public” or “omnilateral” will depends on whether it effectively materializes the rule of law, as I explain in the
remainder of this section. See also the discussion on barbarism in Chapter 9.3.

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political authority by analogy with private contracts. But Kant categorically rejects this

model of political authorization. The standing of the state as an omnilateral will, and hence

its right to perform as such, in no way depends on datable acts of individual consent by its

subjects: “Whether a state began with an actual contract of submission (pactum subiectionis

civilis) as a fact, or whether power came first and law arrived only afterwards, or even

whether they should have followed in this order: for a people already subject to civil law

these subtle reasonings are altogether pointless and, moreover, threaten a state with

danger” (MM 6:318). More radically still, Kant insists that “omnilateral violence, and the

need arising from it must finally bring a people to decide to subject itself to the coercion that

reason itself prescribes to them as [constitutive] means, namely, to public law, and to enter

into a civil constitution” (TP 8:310). But how can this be? How can Kant, the arch-defender

of the moral equality and freedom of finite rational agents, dispense with consent as a

necessary condition of legitimacy?

The key to Kant’s model of political authorization is the application of the categories

of modality to the demands of morality. Metaphysically speaking, the category of ““necessity

is nothing other than the existence that is given by possibility itself” (CPR B111). Something

exists necessarily if and only if the (metaphysical) possibility of its existence ensures that it

actually does exist. I think this idea plays an important, if implicit, role in Kant philosophy of

right as well. For to say that something is morally necessary means that its existence is in

every case justified, just because it ought to be. A morally necessary institution, for example,

may or may not actually exist; but it ought to exist and, for that reason, it is justified in

existing, regardless of how it came about. As Wolfgang Kersting claims, “the state… is called

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for by reason itself and thus equipped with the property of juridical necessity.”12 In my view,

the Kantian state is authorized as an omnilateral will because it is a morally necessary entity

and is therefore justified in existing independently of its particular history, which may or

may not include the consent of its subjects.

On this reading, the significance of consent becomes a function of the moral modality

of the case at hand. If a form of human association is morally impossible (i.e., forbidden),

then consent cannot possibly legitimize it, as in the case of a slavery contract. If yet another

form of human association is morally contingent (i.e., permitted but not categorically

commanded), then consent is necessary and often sufficient to legitimize it, as in the case of

marriage, for instance. We are not morally obligated to marry, but we may choose to do so

consistently with our moral duties. The validity of a marriage thus depends on the consent

of the parties, which also suffices to establish their union (provided the parties are legally

eligible to marry). But things are different when a form of human association is morally

necessary. And for Kant, the set of morally necessary forms of association is a singleton: only

the state, as the constitutive institution of a civil condition, ought to exist unconditionally,

and can therefore prescind from the consent of its subjects in order to enjoy the standing of

an authorized, omnilateral will. The morally necessary existence of the state can be cashed

out by saying that its subjects, if they were rational, would universally and necessarily

consent to it—and this they must, given the argument from the absolute value of humanity

to the duty to enter a civil condition (see Chapter 8.1-2). This is but an application of the

Formula of the Kingdom of Ends. In that Kingdom, whose members are conceived as being

12 Kersting 1992, p. 352.

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fully rational and therefore fully moral, a motion to create a civil condition by instituting a

state would receive unanimous support.

In a very influential account of Kantian authorization, Onora O’Neil has rightly argued

that “[Kant’s] universal principle of justice makes no obvious reference to consent, and Kant

does not identify it as the principle of a social contract.”13 I agree with O’Neill that neither

actual nor hypothetical consent are relevant to Kant’s theory of state legitimacy. But my

reading of Kant’s positive account is different from hers. O’Neill draws on Kant’s “idea of the

social contract” to argue that he “suggests that it is possible agreement that is decisive. [Kant]

appeals to possible universal consent, not to hypothetical consent. The criterion is

apparently modal and not hypothetical.”14 Indeed, the criterion of authorization of the state

is modal, but O’Neil gets the specific modality wrong because the “idea of the social contract”

is not part of Kant’s account of legitimacy (or of a state’s right to perform as such). The “idea

of the social contract” is an evaluative standard for the quality of the state’s performance, not

the justificatory bar for its authoritative standing as a state, as I will argue at length in section

9.2. As a result of this, O’Neill gets the modality wrong: the state is justified in existing, and

its will is correctly regarded as omnilateral not because it is backed by “possible universal

consent,” but rather by the necessary universal consent of finite rational beings insofar as

they are rational. The two modalities—necessary vs. possible universal consent—explain

why, for Kant, the legitimacy-conditions of a state are normatively prior than its justice-

13 O’Neill 2012 [2000], p. 26. Pippin holds a similar view (“[Kant] does not link the claim to state
authority to any implied or presumed act of consent,” 2006, p. 417), as does Korsgaard (“[Kant’s] social contract
is hypothetical or, perhaps better, a transcendental one,” 2008 [1997], p. 243).
14 O’Neill 2012 [2000], p. 32.

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conditions. This is of the greatest importance in explaining his categorical opposition to

revolution, as I argue in section 9.3.

The consent-based model of authorization through a “social contract,” as proposed by

Hobbes or Rousseau, is only appropriate for cases of morally contingent associations. It is

therefore to the appropriate framework to understand the sui generis authority of states.

“The union of many for some (common) end (that all of them have) is to be found in any social

contract” (TP 8:289, emphasis added). Such unions are morally contingent precisely because

the rationality of bringing them about depends on what people actually want, not on what

they ought to want. By contrast, “that union which is in itself an end (that each ought to

have)” is “the civil condition” (ibid.). Because we ought to form a civil condition, whether we

actually want to or not is irrelevant; bringing it about is “the unconditional and first duty in

any external relation of people in general, who cannot help mutually affecting one another”

(ibid.). Since relations of private right in general are only possible on the assumption that

we all act under the authority conferred by some omnilateral will, “only in accordance” with

such a will—“the only will that is lawgiving”—“is it possible for the free choice of each to

accord with the freedom of all, and therefore possible for there to be any right, an so too

possible for any external object to be mine or yours” (MM 6:263). The standing of states as

authorized on rational grounds “lies a priori in the rational idea” of a social world wherein

we can all live consistently with the demands of external freedom. All that is required for a

sociologically individuated state to be correctly taken to be authorized by all is the

observation that its existence makes it possible for us coexist in accord with the demands of

external freedom. How the state has in fact arisen (when, by what means, with whose

consent, etc.) has no bearing at all for its modally justified authority. This is why Kant also

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describes the “omnilateral will” of the state as “the idea of a will united a priori” or

“necessarily” (MM 6:264, emphasis added). For as long as there are finite rational beings

living alongside others, the state must be “presupposed” as a necessary background

condition for their rightful interactions, “for reason itself wills it so” (TP 8:290).

We can see the force of Kant’s idea of modal of authorization by noticing the extent to

which our dealings with others betray our rational commitment to make rightful relations

possible through the institution of a state. Just as the value we ascribe to our own individual

agency commits us to the Formula of Humanity, so every interaction we have with others,

even in a state of nature, embodies a commitment to bring it under public norms through the

state. Even when we behave benevolently in a social world without political institutions, our

actions are normatively defensible only by reference to the possibility of a state, to the state

as thought-entity or “the idea of the choice of all united a priori, by which along I can acquire

a right against every possessor of the thing, which is what constitutes any right to a thing”

(MM 6:274). We may be able to find, as a matter of fact, some sort of accommodation, some

modus vivendi thanks to which we may “use” things as needed in a state of nature—that is,

we may come to have a relatively stable arrangement of “provisional” rights. But that very

effort, even if successful, betrays the need to settle our acquired rights and make them fully

justiciable, lest our ability to use things for our ends remain subject to the will of others. We

might in fact be able to act in our social world as if we owned things. But even that practice

would only work in “conformity with the idea of a civil condition, that is, with a view to it and

to its being brought about” (MM 6:264).15 “[P]rior to its realization,” our rights are merely

15 Notice how the argument in no way relies on the likelihood of violence in a Kantian state of nature, as
I emphasized in p. 411n80.

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“provisional,” or quasi-rights, and to that extent that we want to make them conclusive (i.e.,

rights proper), “the idea of a will of all united a priori…is here tacitly assumed” (ibid.).

Because any claim to an external object remains contestable in the absence of a single,

authoritative judge and enforcer, “Conclusive acquisition takes place only in the civil

condition” (ibid.) regulated by a state. Conclusive acquired rights are only possible the

moment we must move from the “presupposition” of a state, from the mere idea of it, to a

social world “in which the will of all is actually united for giving law is the civil condition”

(MM 6:264, emphasis added). We need the idea of an “omnilateral will” to become a real,

effective force in the social world. How exactly it comes to be, is irrelevant. Nor does it

matter whether individual subjects actually consent to its authority or not.16

For Kant, that which is morally necessary can be taken to be authorized by pure

practical reason as such. What pure practical reason authorizes qua morally necessary can

correctly be taken to be authorized by every finite rational agent as well. Actual consent from

beings who may fail to act on what reason demands is impotent—neither necessary nor

sufficient—to authorize the institution that is indispensable for rightful relations to be

possible in the first place.

16 A. John Simmons has made the striking claim that Kant was “uninterested in the question of legitimacy”
because he is unconcerned with the state’s “special moral relationship” with each individual subject (2001
[1999], pp. 141n37 and 137, respectively). His view is that Kant’s disregard for consent makes it impossible
for him to explain how I am individually bound to this particular state. The issue with Simmons’ reading of
Kant is that he expects Kant to endorse the Lockean idea that “I am constrained only by how I have in fact lived
and chosen” (pp. 149-150). Kant would concede that this is true in most domains of life, but not in relation to
the state. In that case, I am constrained by what is morally necessary irrespective of “how I have in fact lived
and chosen.”

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

The modal interpretation of political authorization relies on Kant’s argument for the

moral necessity of states (yet another reason to pay close attention to the moral foundations

of his philosophy of right). We have already seen the reason why states are morally

necessary—because without them, acquired rights would be impossible and so the full

extent of our Innate Right to Freedom would not be realized. Having this argument in view

is critical to understanding the fact that there are for Kant clear normative criteria for

determining whether any given sociologically individuated state actually counts as an

omnilateral will. The idea I have in mind is similar to my account of Hobbes’s appeal to

imputed consent in cases of sovereignty by acquisition. For Kant as much as for Hobbes,

there is a role that the state is called on to fill or, to put it differently, there is a problem with

respect to which the state must plausibly count as a solution. Any form of organized power

that fails to solve the problems that make the state necessary is, for that reason, not a

legitimate state, as it cannot be accounted as an instance of the institution that is morally

necessitated. “A rightful condition is that relation of human beings among one another that

contains the conditions under which alone everyone is able to enjoy his rights, and the formal

condition under which this is possible in accordance with the idea of a will giving laws for

everyone is called public justice” (MM 6:305-306A). A Kantian must therefore ask himself of

any sociologically individuated state whether it actually makes acquired rights possible,

whether people are able to “enjoy” their rights effectively or not. Only if the answer is “yes,”

would the Kantian be justified in regarding its will as authorized and therefore truly

“omnilateral” and “public.”

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The first and most important condition for the state to solve the coordination and

assurance problems of the Kantian state of nature is that its decisions ought to be final,

politically above all possible contestation. The whole point of having a state is to settle the

intractable disagreements about rights that pervade the state of nature absent conventions

to determine what counts as an appropriately (i) affirmative and (ii) determinate act of

(original) acquisition. The state must be an “effective mechanism of authoritative

settlement,” and this it can be only if its institutional structure forms “a ‘logically’ complete

decision mechanism.”17 The very possibility of conclusive acquired rights depends on the

state’s capacity to settle the boundaries between mine and thing “with mathematical

exactitude” once and for all. It is essential for Kant that the state have the last word on all

matters concerning rights on pain of an infinite regress in the adjudication of conclusive

rights, “For suppose that the people can so judge, and indeed contrary to the actual head of

state; who is to decide on which side the right is? Neither can make the decision as judge in

its own suit. Hence there would have to be another head of state, that would decide between

him and the people; and this is self-contradictory” (TP 8:300). But, Kant insists, this is

precisely with defines a state of nature “in which when rights are in dispute (ius

controversum), [and] there would be no judge competent to render a verdict having rightful

force” (MM 6:312). The very idea of adjudication, of deciding conflicting claims of right, is

premised on the assumption that some authority’s word ought to be taken as final. At some

point down the chain of judgments, we must be able to say, Roma locuta, causa finita.

Otherwise, the state is not actually solving the problems it is meant to remedy.

17 Pogge 1988, pp. 416-417. Hill, Jr. also highlights the importance of this feature of the legitimate state
for Kant: “in a juridical order, and so in a rationally coherent constitution, there cannot be any ultimate
indeterminacy about who is to decide on matter of law” (2002, p. 292).

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This demand for conclusive political determinations about rights commits Kant to the

same brand of absolutism championed by Bodin and adopted by Hobbes and Rousseau.

Indeed, Kant attributes to every legitimate state “supreme authority” or “summum imperium”

(MM 6:318), independently of who gets to exercise such authority, i.e. of who the summus

imperans turns out to be. As in Hobbes and Rousseau, the Kantian state enjoys absolute

sovereignty (Souveränitat or Herrschergewalt) because its decisions on matters of right are

beyond contestation. Res iudicata pro veritate habetur: therein lies the profound social value

of a state’s final and therefore absolute authority.18 Kant’s commitment to absolutism is

most evident in his rejection of the possibility of justiciable claims against the state as

personified by the summus imperans: “Each member of a commonwealth has coercive rights

against every other, the only exception being the head of state (since he is not a member of

the commonwealth but its creator or preserver), who alone is authorized to coerce without

himself being subject to a coercive law” (TP 8:291). The summus imperans, insofar as he or

she acts as agent for the state’s summum imperium, is “uncoercible” by definition (TP 8:312).

The defects of a “limited” constitution (or non-absolute state) become apparent when

one analyzes what would be required for there to be actual limitations on the power of the

state as exercised by the head of state or summus imperans. For that to be possible, the

constitution “would also have to contain a publicly constituted opposition power, so that

there would have to be a second head of state to protect the people’s rights against the first,

and then yet a third to decide between the two, which of them had right on its side” (TP

18 For a similar view of the significance of the finality for Kant, see Waldron (1996), e.g.: “[W]e need a
process—a political process—to determine what the position [of the community] should be… a practice that is
resilient in the face of disagreement with the community position on the part of those entrusted with its
implementation” (p. 1538).

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8:303). Unless the legitimate state enjoys limitless authority, we would be stuck with the

same infinite regress that makes acquired rights impossible merely “provisional” even in the

most peaceful state of nature.

In addition to being absolute, the crucial characteristic of a state that can be regarded

as duly authorized by pure practical reason and consequently “omnilateral” is the rule of law.

Human beings can only “enjoy” their acquired rights when the “general” and “powerful” will

that lays down univocal conventions and provides assurance for all does both things through

general and impersonal rules that are equitably applied to the circumstances of every

subject, without arbitrary distinctions. Only in this way can the state both make acquired

rights possible and do so without itself becoming a dominating agent with respect to its

subjects. It is no accident that Kant agrees with Rousseau on the paramount importance of

the rule of law, since both espouse the same idea of political freedom. (Nor is it a coincidence

that Hobbes, with his thinner notion of freedom as non-interference, makes no such

emphasis on the value of legality.) For Kant, as we saw in connection with Rousseau, the rule

of law is constitutive of external freedom as independence or non-domination.19

Kant highlights the value of the rule of law by using the framework of Montesquieu’s

functional division of powers to analyze the state’s summum imperium into three distinct

components of any genuinely “omnilateral” act of coercion: “Every state contains three

authorities [Gewalten] within it, that is, the general united will consists of a three-sided

person [dreifacher Person] (trias politica): the sovereign authority (sovereignty) in the

person of the legislator; the executive authority in the person of the ruler (in conformity with

19 In terms of a distinction I explained in Chapter 7.4, the rule of law is a constitutive (rather than causal)
means to the protection (rather than promotion) of external freedom. For a similar view, see Hodgson 2010,
pp. 814-817.

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law); and the judicial authority (to award to each what is his in accordance with the law) in

the person of the judge (potestas legislatoria, rectoria et iudiciaria)” (MM 6:313).20 In

equating “sovereignty” with the legislative power, Kant is going beyond Bodin’s insistence

that law-making is the first “mark” of sovereignty.21 Rather, he is emphasizing that the only

justifiable (hence authorized) way of exercising political authority is through general and

impersonal directives as opposed to capricious commands. The law/decree distinction we

encountered in Rousseau has the same central importance for Kant (MM 6:316-317), for it

is in virtue of the law’s universality, as opposed to the particularity of a decree, that the

former can be non-dominating; qua universal, laws are radically different from an agent’s

arbitrium.22 More importantly, the equation between sovereignty and legislation indicates

that the executive and judicial powers of the state can only be deployed in accordance with

the law. Any act of legitimate coercion by the state must have the structure of a “practical

syllogism” in which the law is “the major premise” (MM 6:313). The state can coerce its

subjects consistently with the value of external freedom if and only if the coercive act is

justified by “the principle of subsumption under the law,” as opposed to the arbitrium of

those who happen to be the agents of the state. In this sense, state coercion can only be

20 I have amended Gregor’s translation, which has “three persons” instead of “three-sided person”
because the German is clearly singular. Kant is not speaking of three persons, but of three distinct roles or
aspects of a single person [Person].
21 Pace Fehér, who erroneously claims that “For Kant… the “sovereign” was identical with the chief
executive” (1989, p. 181). On the contrary, because Kant ties sovereignty to legislative power, he can
consistently reject the mixed constitution while insisting (like Rousseau) that it is best for executive authority
to be delegated to an agency other than the legislator. I return to this point in section 9.2.
22 Kant may be read as emphasizing one aspect of Rousseau’s solution to the problem of political
domination. For Rousseau, the impersonality and the popular control over the laws are equally important to
their non-arbitrariness (see Chapter 5.3); for Kant, it is the universality that truly matters. The laws may not
“come from all,” but provided they “apply to all” in an equitable, non-capricious way, subjects will not be
dominated. Crucially, there is still a connection between the Kantian rule of law and the interests of subject, a
connection brought to the fore by the modal interpretation of authorization: the rule of law tracks every
rational agent’s interest in the existence reciprocal rules for the enjoyment of the rights associated with
“external” freedom.

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deployed in response to transgressions of the law—precisely against those acts which by

social convention count as hindrances to someone’s external freedom.

Insofar as the rule of law is indispensable for a state to solve the problems of the state

of nature consistently with external freedom, the rule of law is a necessary condition of

legitimacy for Kant. This is the sense in which “The constitution in every state shall be

republican” (PP 8:349). If a state operates under the rule of law while wielding absolute

authority, then its subjects are right to regard its acts as those of an “omnilateral will.” To

use Rousseau’s terms, if the laws properly “apply to all,” we may regard them as “coming

from all” without the need for actual involvement in the process of legislation. This is

because the rule of law alone materializes “the principles of the freedom of the members of

a society (as individuals),… [the] principles of the dependence of all upon a single common

legislation (as subject), and… [of] the law of their equality (as citizens of a state)” (PP 8:349-

350). Under the rule of law citizens are free in that they can enjoy their rights without

subjection to the will of another, and to the extent that their enjoyment depends on the will

of the state, that will is not arbitrary because (i) it serves their fundamental interest in being

able to have conclusive acquired rights and (ii) the rules which alone can be enforced, qua

general and impersonal, do not target any particular subject unjustifiably. The abstract

character of the law and its essential role in securing rights which we may use for any rightful

purpose whatsoever militates against paternalism. The value of the rule of law lies precisely

in enabling us to use our rights to any end that does not infringe upon other people’s rights;

respecting external freedom involves respecting it even when exercised in pursuit of vices

and immoralities that do not wrong anyone.23 Paternalism is fundamentally illegitimate

23 I mean this in the technical sense of “wrong” as opposed to “harm” (see p. 397n59).

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from the point of view of external freedom: “each may seek happiness in that way that seems

good to hi, provided he does not infringe upon that freedom of others to strive for a like end

which can coexist with the freedom of everyone in accordance with a possible universal law”

(TP 8:290). The whole point of abstract rights is to enable the full exercise of our

purposiveness as such, and hence state that sets ends for us contradicts the very reason why

we ought to bring it about. Such “paternalistic government… is the greatest despotism

thinkable” (TP 8:291-292).24

Furthermore, subjects are equally dependent and receive equal treatment under the

rule of law.25 They are equally dependent to the extent that they are subject to one and the

24 Varden’s contention that a legitimate Kantian state must set itself up as a “public authority…by
ensuring that the totality of laws (public right) secures institutional conditions in which individuals can
exercise their external freedom, or choice in space and time, rightfully” (2010, p. 333) is right as far as it goes,
if by “totality of laws” she means the rule of law as such independently of the justice or injustice of particular
laws (as I explain in section 9.2). But it is unclear to me how this constitutes a “third, republican alternative, to
absolutist and voluntarist conceptions of political legitimacy,” given Kant’s express commitment to absolutism.
The sort of republicanism Kant espouses is, like Rousseau’s, consistent with absolutism. In fact, this is the
distinguishing mark of the “Franco-German tradition of republicanism” they both represent (Pettit 2013). If
one were to adopt the categories of absolutism, republicanism (i.e. the rule of law as necessary for legitimacy
qua constitutive of freedom as non-domination), and voluntarism as classificatory criteria, it would be more
accurate to say that Hobbes is an absolutist and a voluntarist;, Kant, an absolutist republican; and Rousseau, an
absolutist, voluntarist republican.
The difficulty with Varden’s proposal is that she misunderstands the Bodinian absolutism common to
Hobbes, Rousseau, and Kant. According to Varden, absolutism must mean one of two things: either “that the
political leader can do whatever she wants and the people remain obligated,” or that the sovereign is “non-
representative” (op. cit., p. 346). But neither is the case for any of these thinkers. A ruler cannot do “whatever
she wants” without releasing subjects from the bond of obligation if doing “whatever she wants” compromises
their effective protection (which for Kant and Rousseau is defined by the rule of law). In any event, none of
these authors think that rulers can to “whatever they want” even consistently with effective protection, as clearly
argued even by Hobbes in relation to the sovereign’s duties of equity and by Kant with regard to the “idea of
the social contract” (see section 9.2). Absolutism is consistent with there being norms on how the state ought
to exercise its power, though those norms are not justiciable. As for the second alternative, it is unclear what
Varden means by a “non-representative” sovereign. If she means that a legitimate sovereign ought to represent
the people, then this is an ontological truism for Hobbes, Rousseau, and Kant, given that the state is by definition
the personator or representative of the people in whose name it acts. If, instead, she means that a sovereign is
“non-representative” in that the summus imperans does not emanate from the people themselves, then this is
immaterial to legitimacy on the Hobbesian and Kantian theories, though admittedly true for Rousseau (see p.
441n22). Only Rousseau is committed to the claim that legitimate sovereign must be both absolute and
popular. Varden’s overall argument largely depends on what is to count as “a system representing the people”
(op. cit., p. 348), but she never actually explains what sort of representation she has in mind.
25 Howard Williams claims that “It is not nature that makes us equal for Kant but the rule of law” (2010,
p. 369), but this is not correct. Nature does “make” us equal in the sense that we are all equally endowed with

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same set of norms laid down by an absolute state; this alone allows them to overcome the

coordination and assurance problems of the Kantian state of nature. And they are treated

equally in the sense that the laws, qua general descriptions, cannot target them individually

or single them out capriciously; the law is general and applies to all on equal terms.26 The

only justified differential treatment among persons comes in the form of punishment, which

is always a response to deeds that are inconsistent with the Universal Principle of Right. And

punishment so understood cannot possibly be resented as arbitrary because “It must be

always be inflicted upon [the criminal] because he has committed a crime,” “never…merely as

a means to promote some other good for the criminal himself or for civil society” (MM 6:331).

Even the criminal must agree that there is a perfectly good reason, even in light of his own

interests, for the punishment he suffers.27 Kant realizes that punishment is consistent with

freedom not, as for Hobbes, because the criminal has previously consented to being punished

pure practical reason, hence equally deserving of respect because we all have (the same) dignity or absolute
value. When Kant says that we are morally equal (through the Formula of Humanity or the Formula of the
Kingdom of Ends, for instance), he means this as a fact, not as a mere convention. The rule of law simply
ensures, through social conventions, that our interpersonal relations do in fact reflect our baseline moral
equality. See p. 330n41.
26 As most commentators point out, the sort of equality Kant associated with the legitimate state is
merely formal. It is “quite consistent with the greatest inequality in terms of quantity and degree of their
possession,” provided every subject is not legally barred from having acquired rights. It is impermissible that
there by a single subject in “a rightful condition that… has no rights but only duties” (TP 8:292), but I do not
find any textual evidence for the view that “unconditional poverty relief is identified as a minimal condition on
the legitimacy of the state” (Varden 2010, p. 344). Varden argues at length that “considerations of economic
justice lie at the very heart of Kant’s conception of justice” (ibid.), and there may well be perfectly good Kantian
arguments for a strong theory of distributive justice or socio-economic equality. But this was not Kant’s view.
Perhaps a “welfare state in the interest of the human right of freedom itself” is “thoroughly compatible” with
Kant’s thought (Kersting 1992, p. 357), but Kant never argued for that conclusion, as most commentators
recognize (Pippin 2006, p. 445n42; Hodgson 2010, pp. 804-805n33; Pogge 1988, p. 422; Williams 2010, p. 370).
What the requirement of formal equality does rules out is “hereditary prerogative,” which would contradict the
principle that every person is “beyond reproach” in the sense that one’s status in civil society can only be the
result of one’s deeds. But “birth is not a deed of the one who is born” and thus “be cannot incur by it any
inequality of rightful condition” (TP 8:293, MM 6:329). The important point for Kant is the meritocratic
principle that law must not exclude anyone from positions of social advantage, including the acquisition of
private property: “the intention of the state… also requires that everyone be able to rise from lower to higher
offices” (MM 6:328).
27 For a detailed argument along these lines, see Chapter 6.1.

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(“For if the authorization to punish had to be based on the offender’s promise, on his willing

to let himself be punished, it would also have to be left to him to find himself punishable,”

MM 6:335); nor, as Hegel would later argue, because the criminal wills to be punished (“it is

impossible to will to be punished,” ibid.), but rather because coercion that hinders a

hindrance to freedom is eo ipso authorized and legitimate. Punishment is consistent with

the equal treatment of subjects and their independence because it is eminently reactive, like

all acts of legitimate state of coercion: when adjudication is fair, punishment is the inevitable

response to voluntary transgressions of the law, not a display of the state’s arbitrium. This

view of punishment is consistent with, even expressive of, the principle that “a human being

[is] beyond reproach (iusti), since before he performs any act affecting rights he has done no

wrong to anyone” (MM 6:238).

The rule of law is essential for Kant because it alone enables subjects to “enjoy” their

(acquired) rights without making the state a dominating agency. In other words, the rule of

law defines what for Kant counts as “effective protection,” and we can take a state to be

authorized if and only if it does provide the kind of protection that the value of external

freedom calls for. In terms of the interpretation of Hobbes I developed in Part I, the

authorization condition of legitimacy is a function of the effective protection condition; they

are, to that extent, not really independent for Kant.28 The Kantian account of the right to

perform as a state has a single necessary and sufficient condition: that the state effectively

protect its citizen’s external freedom by establishing the rule of law and backing it up with

28 Readers of Kant who take “omnilateral” authorization to be a matter of hypothetical consent rather
than moral necessitation would obviously reject this analysis, and insist on the separateness of the
authorization condition for legitimacy, e.g.: “This monopoly of coercive power, however, is only the empirical
element of a rightful order. For this order to be legitimate, it must be grounded in the hypothetical consensus
of people who recognize each other as free and equal citizens” (Bielefeldt 1997, p. 500).

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force sufficient to uphold it. Any state that counts as republican in this sense is therefore

legitimate, regardless of how it has come about.

9.2 Three Republicanisms

On my interpretation, Kant’s republican account of legitimacy is rather minimal. It is

more demanding than Hobbes’s insofar as the rule of law defines what is to count as effective

protection, but it is also weaker in that authorization is presumed without the need to

ascertain actual or imputed consent.29 If the state effectively protects us (in the sense of

“protection” that matters for Kant), then it is for that reason authorized and genuinely

“omnilateral.” That said, the rule of law does not exhaust Kant’s republican ideals. Kant

expects more of the state. However—and this is critical—the state’s failure to deliver on

those higher expectations does not detract from its right to perform as such. The three

republican ideals I explain in this section are political supererogatory from the point of view

of legitimacy. Whereas Rousseau built his standards of the quality of the state’s performance

into the necessary conditions of legitimacy, Kant adopts a version of Rousseau’s ideals of

29 I therefore disagree with scholars who treat Kant’s model of authorization as similar to Hobbes’s
because, supposedly, the latter thinks “that the social contract is not voluntary. Individuals may be forced into
the civil condition against their consent” (Rauscher 2017 [2016], p. 11). Equally mistaken is the view that Kant
and Hobbes are complete opposites when it comes to their accounts of legitimacy because “this insight into the
distinctively public character of the institution of sovereignty… motivates [Kant’s] rejection of Hobbesian
sovereignty…as merely the strongest unilateral will around” (Flikschuh 2008, p. 394). As I argued at length in
Part I, neither of these views are true to Hobbes. On the one hand, the Hobbesian state has the right to perform
as such only if people have consented to it (where imputed consent counts as sufficiently validating). For all
the weaknesses of Hobbes’s doctrine of imputed consent, it is, for him at least, consent all the same. And on the
other hand, it is not true that the Hobbesian sovereign is “unilateral” or “private.” In virtue of the theory of
personation and the consent-based model of authorization, the Hobbesian sovereign is every bit as “public” as
Kant’s, at least by Hobbes’s own lights.

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justice but follows Hobbes in refusing to make them constitutive of the right to perform as a

state.

Kant agrees with Rousseau’s argument that the equitable enforcement of the laws

tends to be more reliable to the extent that adjudication and execution are entrusted to an

agency (or agencies) other than the legislator. Now crucially, this is not to say that Kant

endorses the mixed constitution. Like Hobbes and Rousseau, Kant endorses the Bodinian

indivisibility thesis and therefore rejects the idea of the mixed constitution as inconsistent

with absolutism. As we saw in the case of Rousseau, Kant simply takes the Bodinian thesis

for granted and accordingly does not spend much time explicitly arguing against the mixed

constitution, which only gets a footnote in the Metaphysics of Morals: “I shall not mention the

adulterations of these forms that arise from invasion by powerful unauthorized peoples

(oligarchy and ochlocracy), or the so called mixed-constitutions [gemischten

Staatsverfassungen], since this would take us too far afield” (MM 6:339n).30 However, the

rationale of Kant’s view is clear enough: if the state’s sovereign power were truly dispersed

across different decision-making centers, there would be no univocal resolution of disputes

over rights—which for Kant means that there would be no satisfactory resolution at all.

Consider what would be required for a mixed constitution to operate. If, say, some agency

had the power to effectively contest the legislative authority of “the supreme commander,”

30 There is a somewhat cryptic remark in the Anthropology that also indicates Kant’s worries about the
mixed constitution. In discussing the Italian national character, he says that “the evil side is knifings, bandits,
assassins taking refuge in hallowed sanctuaries, neglect of duty by the police, and so forth: all of which is not
so much to be blames on the Romans as on their two-headed form of government. – However, these are
accusation that I can by no means justify and which the English generally circulate, who approve of no
constitution but their own” (A 7:317). One must not make too much of this passage given Kant’s attempt to
distance himself from the view he is reporting. But it is still revealing that Kant felt it appropriate to refer to
the paradigmatic historical case of the mixed constitution—the Senatus Populusque Romanus—as an
explanation for a supposedly dysfunctional rule of law.

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then “the supreme commander in a state is not the supreme commander; instead, it is the

one who can resist him, and this is self-contradictory” (MM 6:319). In the case of the British

constitution, for instance, any appearance that the constitution is “mixed” is in fact

misleading. The executive cannot contest parliament’s legislative authority, and the unity of

sovereign power is betrayed by the fact that parliament also holds virtual executive control,

as it can contest and override the government’s executive authority (MM 6:322). As Bodin

would put it, the British government “rules” as executive by the “sufferance” of parliament,

and so it is the latter which in fact embodies the state’s summum imperium. For Kant—as for

Bodin himself—, any legitimate state that seems to be a mixed constitution is not truly so

upon closer inspection.31

Consistently with the rejection of the mixed constitution, Kant can argue for the

desirability of the executive agency’s independence vis-à-vis the legislative by adopting the

Rousseauian distinction between forms of sovereignty and forms of government: “The forms

of a state (civitas) can be divided either according to the different persons who have supreme

power within a state or according to the way a people is governed by its head of state,

31 There is a passage that would seem to contradict Kant’s rejection of the mixed constitution: “the three
authorities in a state are, first, coordinate with one another (potestates coordinatae), and so many moral
persons [moralische Personen], that is, each complements the others to complete the constitution of a state”
(MM 6:316, emphasis added). But I do not think Kant actually means that the three authorities have equal
standing, as if they shared jointly in sovereign authority. Kant’s talk of “moral persons” in this case seems to
me to refer to distinct roles (hence the Latin potestates), not to a requirement that each of those roles be
entrusted to separate agencies. A single agent—in a despotic monarchy, for instance—may alternate between
the “moral person” of the legislator, the executive or the judiciary, depending whether it is passing laws,
enforcing them or adjudicating. In line with the kind of arguments marshalled by Hobbes against the mixed
constitution, Kant adds a couple of pages later that “A state’s well-being consists in [the three distinct
authorities] being united” (MM 6:318). The analytic as opposed to institutional division of state powers is
clearer in a later passage, where Kant writes that “the three authorities in a state, which arise from the concept
of a commonwealth as such (res publica latius dicta), are only the three relations of the united will of the people,
which is derived a priori from reason” (MM 6:338). I think Nicholson is exactly right to point out that “Every
state must have these three powers… But not every state need have the three persons” (1976, p. 216).
Scholars who misattribute to Kant the idea of the mixed constitution or a strict separation of powers
between coordinate agencies sharing in the state’s summum imperium include Hassner (1987 [1963], p. 605),
Westphal (1992, pp. 394-395), and Varden (2010, p. 338).

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whoever this may be; the first is called, strictly speaking, the form of sovereignty (forma

imperii)… The second is the form of government (forma regiminis), and has to do with the

way a state, on the basis of its civil constitution (the act of the general will by which a

multitude becomes a people), makes use of its plenary power” (PP 8:352). 32 Who happens

to be the summus imperans—the agency exercising the sovereign power to make laws—

concerns the form of sovereignty, which could be monarchical, aristocratic or democratic.

By contrast, the form of government depends on whether that same agency also enforces the

law in particular cases through adjudication and/or execution, “and with regard to this, the

form of a state is either republican or despotic.” As is to be expected, Kant illustrates the

problem of despotism by reference to the ancient idea of democracy as a form of both

sovereignty and government: “democracy in the strict sense of the word is necessarily a

despotism, because it established an executive power in which all decide for and, if need be,

against one (who thus does not agree)… and this is a contradiction of the general will with

itself and with freedom” (PP 8:352). When the sovereign legislator simultaneously applies

the law to particular cases the all-important law/decree distinction gets blurred in practice,

to the detriment of the rule of law as a whole. In this narrower sense, “Republicanism is the

political principle of separation of the executive power (the government) from the legislative

power” (ibid.). When a constitution is republican in this sense (not merely insofar as it

32 Fehér mistakenly attributes to Kant the “great originality” of “not merely being the first to make the
distinction between republic… and “democracy”… Equally original was the other distinction logically following
from the first, the distinction between the form of government and the forms of power” (1989, p. 179). Neither
idea was originally Kant’s, and in fact, the latter is logically prior to the former, not the other way around. The
notion of democracy as involving both popular sovereignty and government directly by the people is already
in Bodin and most certainly in Hobbes. And Kant adopted the form of government/form of sovereignty
distinction presumably from Rousseau, who very explicitly articulates it in the Social Contract. (See Tuck 2015
for an explicit engagement with the history of the sovereign/government distinction and Chapter 5.3 for my
objections to Tuck’s proposed genealogy.)

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imposes the rule of law), “the sovereign, which gives laws, is, as it were invisible; it is the

personified law itself, not its agent” (TP 8:294n) precisely because it is some other agency’s

task to uphold the law in particular cases of adjudication and enforcement.33 By contrast, a

despotic form of government places no effective institutional constraints on iniquitous

applications of the law. Despots are like children who “are accustomed to having all of their

whims fulfilled;” both “rule entirely despotically” in that have no disciplined, no inclination

to abide by general rules. In the political case, the independence of the legislator imposes

the discipline of a superior’s law upon the agency or agencies tasked with adjudication and

enforcement.

The mixed constitution as Kant (and Hobbes and Rousseau) understood it involved

the sharing of legislative or sovereign power by different agencies, but this narrower

republican ideal of independent government requires no such thing. In fact, Kant presents

it as requiring a “representative” government—representative, that is, of the legislative will

whose laws remain supreme. The ideal of an independent executive give institutional

concreteness to the general principle that execution ought to be subordinate to legislation

under the rule of law: “a people’s sovereign (legislator) cannot also be its ruler, since the

33 One must not confuse Kant’s “invisible” sovereign with the possibility of meta-incorporation, which
would render the mixed constitution consistent with absolutism by treating the constitution as such—the
collective agent emerging through coordination rules among its constituent agencies—as sovereign. Kant
seems to have been as unaware of this possibility as Hobbes and Rousseau (see Chapters 3.4 and 5.3)
Given that he failed to envision the possibility of meta-incorporation, it is entirely anachronistic to take
Kant to task for failing to recognize “the constitution as sovereign” or, worse still, for not proposing a
“constitutional court” to adjudicate between the people and the state (Westphal 1992, pp. 390, 404, 406).
Westphal goes farther and insists that “Kant cannot be excused on historical grounds for not having considered
more thoroughly a system of checks and balances” (op. cit., 408). Kant did not “miss” such a system (he knew
Montesquieu’s work rather well, in fact); the point is that he thought such a system inconsistent with the
Bodinian absolutism he espouses, following Hobbes and Rousseau.

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ruler is subject to the law and so is put under obligation through the law by another, namely

the sovereign” (MM 6:317).

The second important republican ideal in Kant is his preferred form of sovereignty.

Remember that for Kant it is an ontological fact that any legitimate state—that is, any state

whose will can be regarded as “omnilateral” or “public” because it provides effective

protection through the rule of law—acts in the name of the “united will of the people.”

Because the people is the plurality of subjects (the multitude) regarded as a unity, whatever

the state does, it does in our name. It is therefore an ontologically truism about the legitimate

state that “The legislative authority can belong only to the united will of the people”; because

this is necessarily true of the state, its omnilateral will “cannot do anyone wrong by its law”

(MM 6:313-314; TP 8:293).34 But when the laws are in fact adopted by the citizenry, they

acquire all the more authority for that reason. In this second sense, republicanism involves

the commitment to make politically operative what is otherwise a conceptual truth about the

state. This is the ideal of the “The independence (sibisufficientia) of a member of a state as a

citizen, that is, as a colegislator” (TP 8:294), ideally through elected representatives.35 If

sovereignty is always exercised in the name of the people, it is natural to suppose that

sovereign legislative authority actually exercised by the people is to be preferred. Popular

34 The same point is stressed by Rauscher: “Whether elected or unelected, the moral person who holds
legislative power is representative of the people united as a whole, and is thus sovereign” (2017 [2016], p. 13).
The mode of representation Rauscher has in mind is grounded in Kant’s Hobbesian ontology of the people, as
explained in the previous section.
35 When Reiss defines Kant’s republicanism as entailing “representative government” (1956, p. 186), he
is presumably referring to more than the ontological representation of the “united will of the people” by the
state as its agent. If so, Reiss is singling out this second republican ideal rather than the baseline republicanism
defined by the freedom and equality grounded in the rule of law alone. In general, it is “necessary to disentangle
the equivocation” between “talking about individual citizens making law for themselves through their
representatives [and] the collective body of a people making law for itself through representation” (Halldenius
2011, p. 177). The latter obtains of any state whose will counts as genuinely “omnilateral,” hence as
personating the people as a “united will”; the former obtains only of states that also realize the republican ideal
of popular (representative) sovereignty.

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sovereignty is the second republican ideal for Kant: a step towards a more perfect and stable

rule of law, though not a necessary condition of it.36

The third republican ideal in Kant concerns the quality of the state’s performance or

the justice of its laws and decrees. This is what Kant calls the “idea of the social contract”: “It

is instead 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” (TP 8:297).37 This is yet another instance of Kant’s use of modal

authorization, but this time concerning specific acts of the state’s omnilateral will (“any

public law’s conformity…”) rather than the normative standing of the state as such. In

contrast with the modal authorization of the state as a morally necessary institution, Kant is

36 If Kant were to pass judgment on the Romans, one can see him conceding that civitas sine suffragio is
consistent with legitimacy provided everyone retains the ius provocationis and all other legal protections and
immunities.
Seen in this light, Kant’s famous distinction between “passive” and “active” citizens plays a relatively
marginal role in his political theory. His idea is simple enough: “the right to vote” should only be extended to
people “having some property” because only then is one truly “one’s own master (sui iuris)” (TP 8:295). Kant’s
point is that only a citizen who “serves no one other than the commonwealth” can be trusted to deliberate on
matters of law with the common good in mind, as opposed to casting a vote on someone else’s command.
Clearly, Kant does not think that the property qualification is inherently important; it is, rather, a proposed
heuristic, given that “It is, I admit, somewhat difficult to determine what is required in order to be able to claim
the rank of a human being who is his own master” (TP 8:294n). It seems to me that Kant uses property as the
test for being sui iuris in civil society for reasons akin Rousseau’s point that consent can only be validating when
the alternative does not involve prohibitive costs like radical material destitution. Rousseau drew the
conclusion that for this reason the Republic of the General Will has to ensure some measure of economic
equality (see Chapters 4.4. and 5.3); Kant concludes instead that whoever is not materially self-sufficient,
should not have an active say in what the law ought to be.
For a similar interpretation of popular or representative self-legislation as an ideal that does not
condition the legitimacy of the Kantian state, see Rauscher 2017 [2016], pp. 12-14.
37 As Kant clearly states it, the “Idea of the social contract” is a test for specific acts of the state intended
to “measure the justice of positive laws” (Kersting 1992, p. 155), not “a useful fiction… to determine the kind of
constitution which ought to be established” (Reiss 1956, p. 184, emphasis added).

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here suggesting that any law that is morally possible (i.e. contingent or not forbidden) ought

to be considered just by all subjects alike.38

I think it is illuminating to interpret Kant’s “idea of the social contract” as the

evaluative standard for the quality of the state’s performance against the background of the

three notions of Rousseau’s theory of the “general will.” In a sense, Kant is attempting to join

the objective, procedural, and psychological notions of Rousseau’s “general will” into a single

test for the justice of legislation. The objective aspect of the test is given by the kind of

modality, which I take to be moral rather than, say, logical or metaphysical. Just as the

procedural specification of Rousseau’s general will is constrained by the objective concept

of the common good, so the “could have arisen from the united will of a whole people” must

be understood in terms of what is morally possible for people to agree to. We know, for

instance, that allowing slavery contracts or the complete exclusion of a subject from even

accessing acquired rights are morally forbidden, though they are both logically and

metaphysically possible arrangements. Unless Kant meant the relevant modality of the test

for the justice of legislation to be moral rather than logical or metaphysical, it would rule

virtually nothing out, that is, it would be a completely empty test for all practical purposes.39

38 As I pointed out in section 9.1, O’Neill (2012 [2000])is right to insist that the “idea of the social
contract” appeals to modal rather than hypothetical, let alone actual, consent, a point also noted by Rauscher
(2107 [2016], p. 10), Valden (2010, pp. 335, 349-350), and Westphal (“2014, pp. 179-180). Oddly enough,
O’Neill does not cite a passage that strongly argues for her interpretation. Right after his definition of the “idea
of the social contract,” Kant says that a law that passes the modal consent test ought to be considered “just,
even if the people is at present in such a situation or frame of mind that, if consulted about it, it would probably
refuse its consent” (TP 8:297). He even gives the example of a people whose opinions may be such that they
would not hypothetically consent to a war tax because they may deem the war “unnecessary.” And yet this
would not render the tax unjust “because it is still always possible that the war is unavoidable and the tax
indispensable” (TP 8:297n).
39 Hassner, for example, takes the test to be one of merely logical possibility: “A measure is adopted
rightfully by an entire people, or consistently with the general will by a governor, if there is nothing
contradictory in it” (1987 [1963], p. 606). But if only logically contradictory laws are excluded, then even
slavery contracts would pass the test, for the inconsistency inherent in them is clearly moral (the free choice to
renounce freedom) rather than a matter of contradiction in terms.

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Furthermore, Kant insists on framing the test in procedural terms, though it is somewhat

puzzling why he would do that. Would it make any difference to say that a law is just in case

a rational (hence) moral agent could agree to it versus saying that a plurality of such agents

could unanimously consent to it?40 Presumably, Kant is trying to accommodate the

Rousseauian idea that the procedural specification of just laws that are consistent with the

objective concept of the common good should involve a plurality of agents. Also in line with

Rousseau’s three notions of the general will, Kant clearly states that the “idea of the social

contract” is a deliberative or psychological standpoint that “every legislator” ought to take

up in deciding what the laws should be. The “idea of the social contract” is a thought-

experiment for the summus imperans alone to use as a standard for assessing the quality of

his or her own performance.41 “[I]n an already existing civil constitution the people’s

40 Whether there is any justificatory difference between single-ideal-party consent and unanimity among
a plurality of parties is a general puzzle about contractualist forms of justification. The question equally applies
to Kant’s own Formula of the Kingdom of Ends and to Rawls’s “original position” (1999 [1971]). It is not
obvious what the justificatory difference would be between the consent of a single party deliberating behind
“a veil of ignorance” (or a single purely rational agent) versus the unanimous consent of a plurality parties
similarly situated (or a plurality of pure rational agents). (I raised this question in the context of Rousseau in
p. 252n40.)
41 Pogge misconstrues the “idea of the social contract” as the claim that “Even when sovereignty is thus
transferred, the people maintain their state as ideal (“background”) sovereign, as is manifested in Kant’s
demand that sovereignty always be exercised in whatever way the people wish” (1988, p. 418). Pogge thus
confuses three distinct ideas, one of which he also misinterprets. The people is always the “background”
sovereign only in the ontological sense that any state acts in the name of the people as a “united will.” Kant’s
second republican ideal, that the people should actually exercise the sovereign prerogative of lawmaking
through representatives, is another thing altogether. Talk of the people as “background” or “original sovereign”
(op. cit., p. 418n23) obscures the difference between the one-to-one correspondence thesis as an ontological
claim and popular sovereignty as the ideal forma imperii. And these thoughts are in turn distinct from the “idea
of the social contract” as a test for the justice of legislation, which Pogge mistakenly reads as an appeal to
hypothetical consent. Rulers who run their action by the thought-experiment of morally possible consent are
not asked to govern “in whatever way the people [actually] wish” at all (see p. 438n17).
The confusion between the ontological fact that the state always acts in the people’s name and the ideal
of popular (representative) sovereignty is quite common (e.g. Hassner 1987 [1963], p. 605, Williams 2010, p.
373, and Varden 2010, pp.346-349). When the two ideas are not properly understood as distinct, it is easy to
find seemingly glaring inconsistencies in Kant’s writings, e.g.: “Kant at least thrice again confuses the legislative
authority of the people with the legislative activity of a ‘sovereign’ ruler… Precisely these contrasts between
“the people” and “the sovereign” are and should have remained excluded by Kant’s firm statements about
sovereign authority residing solely with the people” (Westpal 1992, pp. 396-397). What Westphal and others
fail to realize is that “Despite its Rousseauean inspiration, Kant’s ‘collective will’ does not represent the idea of

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judgment to determine how the constitution should be administered is no longer valid” (TP

8:300).

For all the importance Kant attaches to the “idea of the social contract,” he clearly

does not believe the quality of the state’s performance as measured against that standard

bears on its right to perform as a state. It is the state’s duty to submit its actions to this modal

consent test, but the test does not give any right to subjects as against the state: “this

limitation obviously holds only for the judgment of the legislator, not that of a subject… on

the part of the people, there is nothing to be done about it but to obey” (TP 8:297-298). It is

a moral obligation of rulers, but not a justiciable or coercible right of subjects, to adopt

substantively just legislation. And the reason why this is so is quite clear: even a state whose

laws are unjust by the lights of the “idea of the social contract” can still be authorized to

perform as a state insofar as it materializes the effective protection of external freedom

through the rule of law. “The saying Salus publica suprema civitatis lex est remains

undiminished in its worth and authority; but the public well-being that must first be taken

into account is precisely that lawful constitution which secures everyone his freedom by

laws,” even in the face of substantively unjust legislation (TP 8:298).42

It is easy to miss the fact that the state’s exercise of its sovereign power in accordance

with the “idea of the social contract” is not a condition of legitimacy. Kant himself is largely

popular sovereignty” whenever it is deployed to make a point of Hobbesian political ontology (Flikschuch 2008,
p. 393).
42 Though the modal consent test of “the idea of the social contract” is not a necessary condition of state
legitimacy, I think it is a mistake to go as far as Pogge and discard it as irrelevant to the overall structure of
Kant’s theory: “A search for a sophisticated explanation of what people can or cannot decree would then miss
Kant’s point. This formula again is not a substantive principle” (1988, p. 423). It seems to me that the “idea of
the social contract” is a substantive principle in the same sense in which the objective concept of Rousseau’s
general will is substantive (see Chapter 5.2): it may not single out what our laws ought to be, but it does rule
out certain possible laws as unjust.

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to blame for this, since he pits this account of the evaluative standard of the state’s

performance in opposition to Hobbes’s theory of the legitimate state. In a section entitled

“Against Hobbes,” Kant says that “According to [Hobbes] (de Cive, Chap. 7, §14), a head of

state has no obligation to the people by the contract and cannot do a citizen any wrong... This

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

proposition is appalling” (TP 8:303-304). But Hobbes’s view is by no means the proposition

“stated so generally” that Kant finds “appalling.” In fact, the passage Kant references would

suffice to show that his own view is perfectly in line with Hobbes’s: “For injury, according to

the definition made in chap. III. Art. 3, is nothing else but a breach of contract; and therefore

where no contracts have part, there can be no injury. Yet the people, the nobles, and the

monarch [that is, any sovereign] may diverse ways transgress against the other laws of

nature, as by cruelty, iniquity, contumely, and other like vices.” Hobbes never claimed that

justiciable obligations exhausted the set of duties. Obligations in the strict Hobbesian sense

can only arise from contracts, but there are non-contractual duties grounded in the laws of

nature. Consistently with his absolutism, Hobbes denies that sovereigns have any justiciable

obligations to subjects because the political covenant of incorporation takes place among the

subjects (omnes et singuli), not with the sovereign. But the sovereign still has duties of equity

to its subjects. Only violations of contractual obligations are wrongs or injuries strictu sensu,

yet there are genuine (though not justiciable) “transgression” of “iniquity.” Now this is

exactly Kant’s view. For Kant, it is also true that the state’s absolute summum imperium

excludes any coercible rights of subjects against the state. Kant’s words could have easily

been Hobbes’s: “the sovereign has only rights against his subjects and no duties (that he can

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be coerced to fulfill)” (MM 6:319, emphasis added). It is also the case for Kant that only

justiciable (i.e., legal) transgressions constitute “wrongs” in the juridical sense; and it is also

true that sovereigns nonetheless ought to exercise their power in certain ways and not

others, per the standard of the “idea of the social contract.” The normative dimension of

“equity” in Hobbes is exactly parallel to the Kantian “idea of the social contract”: the state

ought to act on them, but nobody can coerce the state to do so. There is no actual discrepancy

between Kant and Hobbes on this score, pace Kant’s misreading of Hobbes.43

Kant’s three republican ideas are connected. The ideal Kantian state should enact just

legislation and make sure its laws are reliably applied and enforced in an equitable manner.

If morally possible consent is the standard for just legislation, it is only natural to infer that

a representative legislator through which the people have an actual voice in what the laws

ought to be is the forma imperii most likely to enact just laws. As Kant puts it, “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)” (MM

6:341). A representative lawmaker is “the kind of government most suited to the idea of the

43 Numerous commentators make the mistake of uncritically adopting Kant’s interpretation of Hobbes,
e.g.: “The right to compel is vested in that sovereign alone. This does not mean—and here Kant was arguing
against Hobbes—that the ruler has no duties or that the subjects have no rights against the ruler” (Reiss 1956,
p. 185); “Kant stresses that, contra Hobbes he does not mean that subjects have no rights against the sovereign;
subjects possess “inalienable rights,” though these cannot be coercive” (Nicholson 1976, p. 220); “In contrast
to Hobbes, however, it does not follow for him that the head of state cannot wrong the subjects in any way, that
there are no limits to what the head of state may do with respect to subjects” (Arntzen 1996, p. 417); “Kant’s
main line of argument, however, reverts to Hobbes’s arguments against divided Sovereignty though,
significantly, Kant does not accept Hobbes’s view that the head of state is not morally bound by standards of
justice” (Hill, Jr. 1997, p. 112); “Kant… emphatically rejected Hobbes’s claim that requirements of justice do not
restrict a sovereign’s treatment of its subjects” (Hill, Jr. 2002, p. 287); “Hobbes’s position was that a ruler is
perfectly free to rule in violation of the covenant since he is not bound by it… Kant’s position is the flipside of
Hobbes’s” (Halldenius 2011, p. 189n82).
This important mistake in Kant’s reading of Hobbes, and thus the substantive affinity between them
on the non-justiciability of the sovereign’s duties of justice with respect to its subjects, is duly noted by Hassner
(1987 [1963, p. 605), Pogge (1988, pp. 424, 426), and Korsgaard (2008 [1997], p. 250n21).

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original contract” (MM 6:340). And if such a state also allowed for the operational

independence of the judiciary and executive powers, it would reliably prevent the evil of

despotism without compromising the state’s absolute sovereignty. That sate would realize

the three republican ideals along with the baseline republican commitment to the rule of law,

and it alone therefore constitutes “a pure republic” (ibid.). Though not every legitimate state

is in fact a pure republic, each and every one ought to strive to become one. But this effort is

to be brought about “gradually and continually”; it “involves an obligation on the part of the

constituting authority” (MM 6:340), never a coercible right on the part of subjects.

9.3 Pereat Mundus

I have argued that Kant’s political philosophy adopts Hobbes’s distinction between

the necessary conditions of the right to perform as a state—i.e., what makes a state

legitimate—and the non-justiciable standards for the evaluation of the state’s

performance—i.e., what a just state ought to do. What is unique to Kant is the strictly moral

argument for the necessity of states, which allows him to dispense altogether with consent

in his modal account of political authorization. The moral necessity of the state suffices to

establish its “omnilateral” credentials if it can effectively protect its subject’s in the sense of

realizing and protecting their external freedom through the rule of law. At the same time,

Kant draws on the Rousseauian idea of the general will to propose a standard for the quality

of the state’s performance; this he calls the “idea of the social contract.” In this section, I

explain how this approach to Kant’s philosophy of right is both confirmed by and helps make

sense of his much-discussed position on the question of revolution. For Kant, the duties of

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political obedience are tied to a state’s right to perform as such and consequently cannot be

breached even when the laws are substantively unjust—provided it is still the case that the

state operates through the rule of law. To the subject considering violent revolt against a

legitimate yet unjust state, Kant’s response is very clear: “fiat iustitia, pereat mundus” (PP

8:378).44

It is somewhat of a commonplace to say that there is a tension in Kant’s stance

towards revolution. While (almost) everyone recognizes Kant’s categorical condemnation

of any revolutionary project,45 readers are often troubled by the apparent contradiction

between this theoretical position and his actual attitude towards the French Revolution in

particular, “The revolution of a gifted people” (CF 7:85). 46 In The Conflict of the Faculties,

44 I therefore disagree with Halldenius’ claim that “The criteria for legitimacy of government action and
for the obligation to obey them are not the same” (2011, p. 174). It seems to me, on the contrary, that the
concept of legitimacy is precisely meant to track the normative features that justify the requirement of
obedience to an authority.
45 I say “almost” because there are some revisionist commentators for whom Kant’s explicit prohibition
of revolution was a kind of acknowledgement of its inevitability, e.g.: “Resistance can never be part of the
doctrine of right, but is a necessary part of the slow progress of freedom in civil society. Unrightful change is
therefore a necessary feature of the state as progressive” (Halldenius 2011, p. 183). This gets Kant upside
down. Halldenius’ argument is premised on the assumption that a civil condition “can be established only by
force” (p. 174), but Kant never says anything of the sort. It is irrelevant, from the point of view of modal
authorization, how a civil condition came to be; but Kant could not have possibly believed that violence was the
only way to bring it about, even if that is the historically prevalent mode of instituting a state. The single
example of the Mayflower Compact should suffice to prove Halldenius wrong. In any event, she completely
misrepresents Kant’s “official” argument against rightful revolution. She argues that “Kant cannot allow
unenlightened subjects to inquire into their reasons to be obedience… Allowing people who are incapable of
making such judgment to still make them is the same as reverting to a state of war” (pp. 182-183). The latter
claim is clearly an exaggeration without textual support, and the former mistakes absolutism for a patronizing
attitude towards subjects. Kant’s vigorous defense of freedom of the pen—basically, the right to publicly invite
sovereign to reform the constitution in line with republican ideas (TP 8:304)—is indicative of the value he
places on the “public use of one’s reason” (WE 8:36-37). Kant is careful to explain that freedom of the pen is
not inconsistent with absolutism at all: “though you can indeed reason publicly about [the sovereign’s]
legislation, you cannot set yourself up as an opposing legislator” (MM 6:274).
46 For analyses of Kant on revolution that take this apparent tension as their point of departures, see
Reiss (1956, p. 179), Hassner (1987 [1963], p. 602), Axinn (1970, p. 158) and Korsgaard (2008 [1997], pp. 236-
237), among others.
For the record, Kant’s opinion of this “gifted people” is more ambivalent than it is sometimes
recognized. In his description of the French national character, he says that the French people as a whole is
“lovable,” but that “The other side of the coin is a vivacity that is not sufficiently kept in check by considered
principles… and it is an infectious spirit of freedom, which probably also pulls reason itself into its play, and, in
the relation of the people to the state, causes an enthusiasm that shakes everything and goes beyond all bounds”

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Kant does say that “sympathy” for the French Revolution “can have no other cause than a

moral predisposition in the human race” (ibid.). But Kant is characteristically consistent, for

such positive remarks are meant to evaluate “the heart of all spectators (who are not engaged

in this game themselves)” (ibid.; emphasis added). Nothing Kant says in this famous passage

is intended as a defense or excuse for the revolutionaries themselves. On the contrary,

mindful that the Revolution “might be filled with misery and atrocities,” Kant goes on to

clarify that “a right-thinking human being, were he boldly to hope to execute it successfully

the second time, would never resolve to make the experiment at such cost” (ibid.). The fact

of the matter is that “Kant never commends the French Revolution as a revolution,” but

merely “what is happening outside France,” namely, the attitude of a European public excited

by the ideals of liberté, egalité, fraternité.47 The difficulty with Kant’s position on revolution

is not at all about the consistency between his theoretical views and his personal political

sympathies. Rather, the problem is that Kant’s opposition on revolution seems intolerably

inflexible.

That Kant is indeed opposed to any revolutionary project is undeniable. For purposes

of illustration, consider the following remarks form each of Kant’s three major political

works. (1) “Thus if a people now subject to a certain actual legislation were to judge that in

all probability this is detrimental to its happiness, what is to be done about it? Should the

people not resist it? The answer can only be that, on the part of the people, there is nothing

to be done about it but to obey” (TP 8:297-298); (2) “‘Is rebellion a legitimate means for a

(A 7:313-314). It looks like the French “spirit of freedom” errs on the right end of the freedom-spectrum, so to
speak, but it errs nonetheless, and in particular with respect to the political effects of the clashes it incites
between the state and the people.

47 Nicholson 1976, p. 226.

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people to throw off the oppressive power of a so-called tyrant (non titulo, sed exercitio

talis)?’… [I]t is still in the highest degree wrong of the subjects to seek their right in this way”

(PP 8:382); (3) “This saying [that ‘All authority is from God’] is not assertion about the

historical basis of the civil constitution; it instead sets forth an idea as a practical principle of

reason: the principle that the presently existing legislative authority ought to be obeyed,

whatever its origin” (MM 6:319). It is as if Kant cannot resist the opportunity to impress

upon the reader the extent of his conviction that violence is never authorized as a means to

political change, no matter how defective one might find the current state of political affairs.

In order to understand Kant’s precise arguments against revolution, it is important to

specify what exactly he is objecting to. For starters, Kant clearly means that subjects cannot

coerce legitimate states in any way, for whatever reason. But as I explained in section 9.1,

not every sociologically individuated state counts as an “omnilateral” and therefore

authorized public will. An illegitimate power, however successfully dominating, does not

constitute a civil condition if it fails to actualize the rule of law. A lawless political condition

is not a civil or rightful condition, and hence resistance to it is not actually an instance of

revolution. In that sort of social world, human beings continue to live in a state of nature,

however orderly it may seem to be in virtue of the overwhelming force of that organized

power. Kant clearly envisioned such a possibility in a crucial passage in the Anthropology,

where the following “four combinations of force with freedom and law” as explicitly

distinguished: “A. Law and freedom without force (anarchy). B. Law and force without

freedom (despotism). C. Force without freedom and law (barbarism). D. Force with freedom

and law (republic)” (A 7:330-331). Anarchy is obviously a state of nature, because no

convention (no law) can effectively solve the coordination problem of the state of nature

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without also solving the assurance problem—and that requires actual power, the readiness

and willingness to sanction those who deviate from the shared norms that give structure to

the social world. An anemic “state” without the ability to coerce is not a real state, nor could

it bring about a civil condition. Now “barbarism” is, in my view, also a form of the state of

nature. Though there is force in the hands of some organized power sufficient to impose

“order,” this order cannot possibly count as effective protection in the Kantian sense, namely,

protection under laws that guarantee a non-dominated sphere of action for each person. A

state without laws is just a particularly powerful “unilateral” will and so a dominating agency

in its own right; no such entity could possibly be deemed authorized in Kant’s view, no

matter how benevolently it exercises its power.48

48 It is striking that almost no commentator discusses this extremely important passage, with the notable
exception of Arthur Ripstein (2009, pp. 28, 336-343, and 2012 [2003], pp. 67-68). I am indebted to Ripstein’s
analysis of the special features Kant’s notion of barbarism, which helps Kant explain why the “prohibition of
resistance does not imply any duty of obedience to a regime that practices state-terror and murders entire
groups of the population” (Kersting 1992, p. 361).
Because he fails to take notice of the nature of barbarism as a form of the state of nature rather than a
defective civil condition, Reiss thinks that Kant’s theory cannot account for “the modern totalitarian state” as
“organized unlawfulness” (1956, p. 190). But this is exactly what barbarism is: “organized unlawfulness,” or
“force without law or freedom.” The Kantian framework directly explains why we can resort to violence against
a totalitarian state—namely, because doing so is not an act of revolution, but merely the exercise of our
coercible right (and moral duty) to bring about a civil condition in the first place. Similarly, Nicholson struggles
to make room for permissible violent action in Kant by attributing to him a view that is not supported by his
writings: “Kant admits that a sovereign may rule so harshly that his subjects are driven to rebel, and maintains
that the subjects then act from necessity and the rebellion is excusable” (1976, p. 228). I cannot find any
passage where Kant makes revolution “excusable,” but the notion of barbarism helps to justify the conclusion
Nicholson is trying to support: if “ruling so harshly” means that there is in fact no rule of law, then we can resort
to violence to create a civil condition. “Rebellion” is a misnomer for that sort of violent political action, which
is no more than the legitimate enforcement of a natural right.
Again, if we might define a case of barbarism that uses law as a façade as a tragic scenario where
“justice is turned against itself, perverted” and “the procedures of justice may be used against these very ends”
that they are meant to advance (Korsgaard 2008 [1997], p. 256), then it does not follow that the individual who
considers violent action is a “conscientious revolutionary” for whom “the virtue of justice will be turned against
itself too” (op. cit., 257). If the case is as Korsgaard describes it, and so an instance of barbarism, the duty of
virtue speaks with a single voice to this person, it has by no means “imploded” (p. 260): it is his or her duty as
well as right to use force if necessary to bring about a genuine civil condition. There is no need to postulate a
“gap” in the moral world, or an odd Kantian case of “moral luck” (pp. 258-259), to deal with the case Korsgaard
envisions.

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The crucial point to grasp is that the four types of social worlds Kant distinguishes in

the Anthropology do not form a continuum. Between the cases where there is law and those

in which there is not, there is a radical break, an immense qualitative leap. For even when

defective, the rule of law is the single most important constitutive condition of external

freedom as independence. Indeed, “the transition from a state of nature to a juridical state

must, in this respect, appear as the crossing of a sharp line—rather than as a matter of

degree.”49 Among the forms of political life that have law, the distinction between

republicanism and despotism concerns the institutional reliability of the equitable

application of the rule of law, in terms of what I called in section 9.2 Kant’s second republican

ideal. The sense in which a despotic regime lacks “freedom” refers to the fragility of the

subjects’ external freedom under a constitution that allows execution and/or adjudication to

be carried out directly by the sovereign legislator. But notice that this is an empirical

conjecture (though a pretty good one, to be sure), not a hard fact. An institutionally despotic

state may in fact turn out to be quite equitable in the administration of justice and the

enforcement of the law, but a republican system (in the sense of “republicanism” that argues

for the independence of government) is generally more trustworthy on that score. In any

event, both republican and despotic regimes may be substantively unjust by the standards

of the third republican ideal, that is, by the lights of the “idea of the social contract” as the

standard for evaluating the quality of the state’s performance. In sum: when Kant condemns

revolution, he is proscribing violent political projects that in any way challenge the standing

of a legitimate state, whatever its forma imperii, whatever its forma regimini, and however

unjust its laws may actually be.

49 Pogge 1988, p. 417.

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When Kant talks about revolution, it is important to bear in mind that he has a

particular kind of political act in mind; he is interested in “Political violence” that “has a

political purpose,” the primary aim of which is “not merely profit, revenge, personal grudge,

and the like, but at least in part to gain or retain control of legal and political institutions, to

express an ideology, to gain or assert a perceived right, etc.”50 As we might put it, revolution

is a politically motivated resort to violence aimed at effecting a (partial or total)

constitutional change. It is therefore in the very nature of revolutionary action that it is a

challenge to the absolute authority of the state, an active effort on the part of subjects to force

the sovereign’s hand.51

Kant’s first argument against revolution is that revolution so understood is an

inherently illegal act. If a constitution allows for a codified right of rebellion, then the

constitution is self-undermining. It would by definition not set itself up as a final decision-

making authority, and would consequently fail be the final adjudicator that Kant expects it

to be. If the state’s authoritative settlements remained open to contestation in that way,

there would never be a point at which we could say, once and for all, that res iudicata pro

50 Hill, Jr. 1997, p. 109. It is quite striking how rarely discussions of Kant on revolution actually consider
the precise nature of the acts that fall under that rubric. The only other commentator I know who takes this
issue seriously is Nicholson (1976, p. 215).
51 In a government that is republican in the sense of the second ideal discussed in section 9.2,
revolutionary action may in fact be directed against the executive power (Kant’s “ruler” when contrasted with
the sovereign). Since both the subjects and the executive authority are supposed to be equally subject to the
laws, it may seem like this case does not constitute a direct challenge to the sovereign. But in fact, when the
forma regiminis is republican, the “sovereign can also take the ruler’s authority away from him, depose him, or
reform his administration” (MM 6:317). If the subject challenges the ruler by making his or her case before the
sovereign, then this is not a revolutionary act at all; it is more like those “controversies” with the sovereign that
Hobbesian subjects can take to a court of law (L XXI.19; see Chapter 3.5). When the subject proceeds that way,
his action falls within the constitution. If, however, the subject attempts to coerce the ruler—without nominally
challenging the sovereign—this is still an attempt to force the sovereign’s hand, for the ruler retains its power
only by the sovereign’s “sufferance,” as Bodin would put it. Violent challenges to an independent executive
authority are therefore, in every instance, also attempts at coercing the sovereign. See also Nicholson 1976, p.
217, for a similar analysis of the case.

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veritate habetur. Such a self-defeating arrangement would be nothing short of an

“absurdity”: “For a people to be authorized to resist, there would have to be a public law

permitting it to resist, that is, the highest legislation would have to contain a provision that

it is not the highest and that makes the people, as subject, by one and the same judgment

sovereign over him to whom it is subject” (MM 6:320). Worse even, it is in the nature of the

case that a codified right of resistance would be non-justiciable, for “who is to be judge in

this dispute between the people and sovereign” (ibid.)? After all, a right of resistance does

not mean that every claim to be exercising said right is in fact defensible; someone has to be

able to say whether that is so or not. If the people itself is to judge, then the people was

sovereign all along. If the contested “sovereign” is to judge, then the putative rebellion is not

actually contesting its final authority. And if a third party is to judge, then that party would

have to be deemed sovereign—and it would be beyond contestation. Kant’s case for

absolutism based on the expectation that rights are to be adjudicated definitively by some

final authority or other forecloses the very possibility of an intelligible legal right to

revolution.52

Given Kant’s commitment to the correlativity thesis,53 to say that there is no legal

right to revolution amounts to saying that subjects have a legal duty to obey the legitimate

state’s laws, decrees, and verdicts, whatever they may be. And we have already seen that

duties of right are always indirectly duties of virtue: because the state is a morally necessary

institution, because we ought (morally) to live under the rule of law, we also have a moral

52 For similar analyses of the impossibility of a legal right to revolution, see Rauscher (2017 [2016], p.
19), Nicholson (1976, p. 220), Pogge (1988, p. 422), Kersting (1992, p. 360), Hill, Jr. (1997, p. 115, and 2002,
pp. 291-292), and Flikschuh (2008, pp. 380-382). Westphal downplays the importance of the legal argument
because he finds it superficial, almost tautological (1992, p. 398), but it serves the important role of highlighting
the close logical connection between absolutism and the need for a final adjudicator of all disputes about rights.
53 See p. 385n38.

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reason to comply with what the state requires of us. Law-abidingness is, for Kant, a duty of

virtue as much as it is a duty of right.54 In addition to being illegal, revolution is inherently

contrary to the very idea of the rule of law, and is therefore also immoral.

To better understand Kant’s moral case against revolution, we must distinguish

between two broad duties of legality. There is, on the one hand, a duty to protect legality as

such. This is just a restatement of the unconditional moral obligation and coercible right to

bring about, and protect or sustain, a civil condition structured by the rule of law. On the

other hand, the (moral) value of legality grounds a pro tanto moral reason to obey specific

laws or directives issued by the legitimate state, since the effectiveness of the rule of law

consists precisely in the reliability with which people generally behave in accordance with

the law.55 Morality requires that we take the sheer fact that some directive is a public law as

a reason to behave in accordance with it. The difference between the pro tanto moral duty

to obey specific laws and the categorical moral duty to protect legality as such is of the

greatest importance, for it allows Kant to distinguish revolution (which is always morally

impermissible) from conscientious refusal (which may even be morally required at times).

The distinction between revolution and disobedience in turn highlights the moral gravity of

the former.

Let us consider first the case of conscientious refusal. If morality requires that I obey

this particular law because doing so is partly constitutive of upholding the value of legality, I

am effectively giving the state the authority to determine my reasons for action. But no state,

however legitimate, can have more rational or deliberative authority than practical reason

54 Hill, Jr. 2002, p. 291, and Korsgaard 1996 [1989], p. 20.

55 See Chapter 3.7 on the idea that here must be a critical mass of acquiescence for any state to actually
retain its monopoly of political force.

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itself; on the contrary, the state’s authorization to perform as a state depends on the

antecedent authority of pure practical reason. Now any law that demands that I do

something that is not in itself morally forbidden (e.g., paying egregiously high taxes or

refraining from publishing a book), is by definition morally permissible. I may act on that

law, however unjust, without violating any (perfect) duty of virtue. But if the case is the

opposite, if the state commands me to use some other person merely as a means, for example,

then the state is effectively positioning itself in opposition to the demands of pure practical

reason. And yet the state’s own authority depends in the authority of pure practical reason,

as we saw in connection with Kant’s modal account of authorization. When a directive from

the state is in violation of a strict moral prohibition, the pro tanto moral reason to obey that

directive is defeated. Kant is therefore right to gloss the duty of obedience to specific laws

with a moral exception: “Obey the authority of who has power over you (in whatever does not

conflict with inner morality)” (MM 6:372).56 If a legal system asked its subjects to directly

56 This possibility of conscientious refusal is sometimes treated, explicitly or implicitly, as allowing civil
disobedience (e.g., Rauscher 2017 [2016], p. 20; Pogge 1988, p. 433; Kersting 1992, p. 361). I hesitate to use
the latter expression because it suggests that Kantian subjects are allowed to refuse to obey for political
reasons, when in fact the refusal is only justified in case the action that is required of them is in direct
contradiction with some (perfect) duty of justice. I think Kant’s idea is closer to the Socratic principle that it is
better to suffer an injustice than to commit one, than to Thoreau’s refusal to pay taxes to support an unjust war.
The idea of civil disobedience invites the mistaken inference that subjects can disobey when they think a given
law fails the test of the “idea of the social contract,” whereas Kant clearly refuses to extend that prerogative to
subjects. A subject may well run the thought experiment, but cannot do anything about it if a law is believed to
fail it (Rauscher 2017 [2016], p. 19; Pogge 1988, p. 425).
It is worth remembering that Kant is primarily concerned with the duty not to wrong others, and only
derivatively with the moral interest in not doing anything that might cause them harm (RL 8:427-428; see p.
397n59). A law that I think may be harmful to others but which nevertheless does not ask me to wrong them
would not trigger the possibility for conscientious refusal.
It is also important not to misconstrue the reason why conscientious refusal is acceptable. Kant’s
actual reason is that morality demands something other than what the law commands, not that law in general
is inimical to autonomy. Kant does not have a general problem the view obvious fact that under the rule of law
“one has a duty to act according to a will which is not one’s own,” and this, pace Arntzen, does not “betray the
person’s autonomy” (1996, p. 401). The suggestion that autonomy is inimical to law-abidingness may appear
Kantian in spirit, but is nowhere in Kant’s writings. It can actually lead to a conclusion very much opposed to
Kant’s own, like Wolff’s “Kantian” anarchism (1998).

467
contravene their moral obligations to others too often, it would be rather doubtful that it

could even count as a genuine case of the rule of law. In fact, it would be (or come close to

being) a case of barbarism, of sham legality. On that assumption, the Kantian allowance for

conscientious refusal is consistent with the direct moral duty to protect legality as such, for

a legality worth protecting would only very rarely give occasions for valid appeals of

conscientious refusal. In any non-barbaric regime, the sovereign may “step beyond justice”

and enact objectionable legislation, but he who appeals to conscientious refusal can still

consistent agree that the rulers have thereby “misplaced their authority rather than

permanently disqualified themselves from holding it.”57

Unlike duties to obey particular laws, which are defeasible from a moral point of view,

the duty to uphold and protect the rule of law as such is a direct moral duty, as I argued at

length in Chapter 8.58 There is no moral argument, no categorical imperative-test for

maxims, that would support any action aimed at undermining the rule of law. And this is

precisely what a revolution is, even if the revolutionary fails to see it as such. If, as Kant

believes, the absolute and thus non-coercible authority of the state is essential to fulfilling its

moral role, then any challenge to its sovereignty is eo ipso a challenge to the possibility of

conclusive rights in general. Like refusal to join a civil condition while still in the state of

nature, revolution constitutes “wrong in the highest degree” (TP 8:301; PP 8:383): it is a

denial of the very possibility of rightful relations.59 A revolutionary is effectively announcing

57 Williams 2010, p. 380.

58 This critical distinction explains why there is no slippery slope between conscientious refusal and
outright revolution, as Hill, Jr. seems to think there is: “It is natural to conjecture that the same sort of
considerations that call for passive disobedience to law might justify active attempts to overthrow a tyrant”
(2002, p. 296).
59 Interestingly, Kant also describes a sovereign’s exercise of “the right to grant clemency… With regard
to crimes of subjects against one another” as “injustice in the highest degree” (MM 6:337). Because the whole
point of external freedom is that nobody should be in a position to dominate me, or at least not to do so with

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to everyone else his or her unwillingness to defer to the judgment of the state on matters of

right and justice—without which judgments there can be no rights at all! This unwillingness

is a refusal to participate in the common institutional framework that provides assurance for

all; it is, in effect, a commitment to placing his or her private judgement above the res iudicata

that we have all agreed to take for the truth in matters of right. The revolutionary “is turning

his back on the idea of our sharing a view about right or justice and implementing it in the

name of community.”60

We must not mistake the earnestness of Kant’s argument for an empirical conjecture

about the likelihood that any given revolutionary project will actually take us “back” into a

state of nature.61 True to form, Kant’s worry is strictly about the justifiability of the

revolutionary’s maxim, not about the effects that such a maxim may actually have. If suitably

universalized, the revolutionary’s maxim “would make every rightful constitution insecure

impunity, failure to punish on the sovereign’s part is an abdication of its central constitutive role. A sovereign
who refuses to punish transgression undermines the value of the rule of law, just like a revolutionary does in
resorting to violence to force constitutional change. Kant’s “wrong in the highest degree” generally refers to
any action that undermines practices which are in turn conditions of possibility of civilized life, e.g., the practice
of truthfulness: “though by a certain lie I in fact wrong no one I nevertheless violate the principle of right with
respect to all unavoidable necessary statements in general (I do wrong formally though not materially); and
this is much worse than committing an injustice to someone or other, since such a deed does not always
presuppose in the subject a principle of doing so” (RL 8:429). Similarly, a states that refuse to join an
international legal order preserves a state of affairs that “is in itself wrong in the highest degree” (MM 6:344).
60 Waldron, 1996, p. 1564.
61 This seems to be Pogge’s reading, as suggested by his remark that “it is not so obvious in any case
whether Kant does, or we should, take too seriously the problem of a momentary relapse into a state of nature”
(1988, p. 419). The likelihood or duration of the relapse is not the point; what troubles Kant is the commitment
to welcoming a state of nature in lieu of a rightful condition that is inherent to every revolutionary maxim.
Just as the likelihood that a state of nature will actually obtain does not bear on the prohibition on
revolution, so the likelihood that reform will work better than revolution is not the grounds for the strict
Kantian duty of political obedience (e.g., Hill, Jr. on the alleged importance of Kant’s “untenable faith in historical
progress” to justify his view on revolution). Westphal argues for an interpretation along similar lines:
“obedience to de facto, imperfectly legitimate state” is required because “membership in the state helps
improve one’s character by counter-balancing moral inclinations” (1992, p. 383). Westphal here avails himself
of the Pogge-Beck teleological interpretation of the moral foundations of Kant’s politics that I criticized in
Chapter 7.4. He must resort to that line of argument in order to account for Kant’s blanket condemnation of
revolution in the face of his mistaken conviction that this condemnation is unconditional only with respect “to
fully legitimate authorities” (ibid.; cf. also Westphal 2014, p. 187), by which he means the Pure Republic that is
both legitimate and just in terms of three republican ideals discussed in section 9.2.

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and introduce a condition of complete lawlessness”—in effect, it would involve a devolution

to the status naturalis “in which all rights cease, at least to have effect” (TP 8:301). The

revolutionary who thinks she is taking up arms against unjust laws is mistaken: what she

actually does is rise up against the very possibility of law, just and unjust law alike. 62 In the

state of nature that the revolutionary is committed to welcoming, the normative structure of

the social world is so gravely impoverished that we even lack standards to define what is to

count as wronging others; it is, in this sense, a “state devoid of justice (status iustitia vacuus)”

(MM 6:312). As Robert Pippin argues, “without a civil order, it will be difficult if not

impossible to fulfill the duty” not to wrong or dominate others because we don’t even have

clear common conventions to fix the legitimate extent of each of our individual spheres of

external freedom.63 From the point of view of morality, the revolutionary is someone who

takes his or her practical reason to have such special authority that it ought to take

precedence over the “omnilateral” will that represents “the united will of the people,” even

at the expense of the possibility of conclusive acquired rights for all. Revolution is the

ultimate display of arrogance, that vice “that violates[s] duties of respect for other human

62 This is, I think, the main problem with Hill, Jr.’s “Kantian” defense of the right to revolution (1997,
2002). He invariably takes the relevant maxim to be tested by the categorical imperative to be some sort of
specification of a simple trade-off or cost-benefit analysis between acquiescence and violent action aimed at
constitutional change, as if Kant could equate “doing” and “allowing” (roughly corresponding to “wronging”
and “harming,” respectively) and focus exclusively the feature of a state of affairs for which the action is a causal
lever. It seems to me that Kant would find that approach mistaken from the start. The maxim that the
revolutionary ought to test is something along the lines of, “It is permissible for any given subject to be willing
to bring an end to the rule of law whenever he or she is the opinion that the status quo is worse than the state
of nature.” Kant thinks that no status quo that is also a civil condition (which, again, excludes barbarism) could
possibly be preferable to the state of nature, “for some rightful condition or other, even if it is only to a small
degree in conformity with right, is better to none at all” (PP 8:373n). As Nicholson argues, the revolutionary’s
maxim may even involve a contradiction in the will that would fail the Formula of Universal Law version of the
categorical imperative test, as “it is willed that there be justice (by ending the sovereign’s unjust actions) and
simultaneously that there be no justice (by denying the sovereign authority which is the necessary condition
of justice)” (1976, p. 222).
63 Pippin 2006, p. 435.

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beings” by demanding “that others think little of themselves in comparison with us” (MM

6:465). Robespierre’s words are again very much to the point: “vous le savez, frères et amis,

notre volonté, c’est la volonté générale.”64

The ideology of the French revolutionary explains Kant’s third a final argument

against revolution. Often enough, revolutionary leaders like Robespierre are reluctant to

admit that they are acting in their own individual interests, or in defense of a particular

faction or group. Rather, they typically claim to rise up in arms against the state in the name

of the people.65 And Kant has a further objection to such attempts at usurping the state’s

exclusive spokesmanship for the “united will of the people”: the existence of the people as a

totality—that is, as a plurality that is also a unity—depends on the univocality of the agent

who represents it. Kant’s endorsement of Hobbes’s one-to-one correspondence thesis

between a people and the state that acts in its name rules out as ontologically impossible that

one and the same people could ever have more than a single personator. So, either the state

is not a public and “omnilateral” will (which cannot be the case if we are dealing with a civil

condition), or the revolutionary cannot possibly validate his or her claim to act on the name

of the people. In rising up against the sovereign, “the people cannot react at once as a

commonwealth but only as a mob” (TP 8:302n) and, in fact, the deposing of an effectively

protective sovereign is nothing short of ontological “suicide” (MM 6:322n); it is a multitude

64 Robespierre 1792, p. 506. True to his arrogance, Robespierre reportedly conceded that “Taking an
emergency measure of this kind [the king’s trial] means… that we temporarily return to the state of nature in
the act of destroying our enemy. Kant would have greatly appreciated (and perhaps did) Robespierre’s
truthfulness, because this was precisely what Kant believed to be the truth about the fact of revolution” (Fehér
1989, p. 169).
65 Think of the American Founders’ “We the People” or, to cite a contemporary case, the Colombian
terrorist group FARC (Armed Revolutionary Forces of Colombia), which proclaimed itself the “Army of the
People” (Ejército del Pueblo) in the 7th Guerrilla Conference of 1982 (Karl 2017, p. 221). To this day, the
organization retains the label “FARC-EP.” Up until the recent peace accord signed with the Colombian
government, the FARC’s approval ratings over the last 16 years averaged 3% (Gallup 2017).

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ceasing to be a people by its own hand. In the absence of a sovereign state, “the people

possesses no coercive right at all” because it does not even exist as a people (universi), “but

if the general will exists” through the person of the sovereign, “there is likewise no coercion

to be exercised by [the people] against him,” since the people can then only act through the

summus imperans (TP 8:302).66

The revolutionary who goes as far as proclaiming him or herself a spokesman for the

people as such reaches the height of arrogance. Not only does such a revolutionary take his

or her private judgment to take precedence over the state’s; what is more, he or she takes

his or her own judgment to be in fact public and omnilateral.

For all his moral repudiation of violent politics, Kant is aware that revolutions do

happen, and that they sometimes succeed. When the revolutionary’s wager pays off—and it

is an irresponsible, immoral wager from the start—, the momentary “relapse” into anarchy

66 The ontological argument has received surprisingly little attention in comparison with the legal and
moral ones, with two notorious exceptions: Korsgaard 2008 [1997] (pp. 250, 254; she refers to the ontological
argument as “a deeply proceduralist conception of the general will”) and Flikschuh (2008, pp. 377-378, 397-
401). Flikschuh is particularly clear in emphasizing that the ontological argument only works against
revolution conceived as “a public act,” that is, as an act done on behalf of the people or in its name.
I should to register just one disagreement with Fliskchuh. She argues at one point that “the existence
of a civil union” is not “a sufficient condition for having rights. A sufficient condition would be a civil union that
constitutes a Rechtstaat,” that is, a civil union conjoined with the rule of law” (op. cit., 382n10). There are two
issue with this proposed distinction between civil union and Rechtstaat. The first is that I do not think Kant
ever draws it in his writings, and Flikschuch gives no actual references to passages where she sees evidence for
it. But more importantly, I think that Kant is committed to the view that a civil union, i.e. a people universi, can
only exist if the union is also a Rechtsaat. As I explained in section 9.1, the people derives its unity from the
univocality of a personator capable of acting in its name; but an agency can only act in the people’s name if it is
duly authorized; and, for Kant, the personator of the people is authorized if and only if its agency realizes the
rule of law. Without the rule of law, the state cannot be seen as an “omnilateral” will, in which case it would
not be authorized to represent the people and so it could not possibly be the personator that gives it unity and
existence as a group agent.
Notice that true to the status of popular sovereignty as a republican ideal of justice rather than a
necessary condition of legitimacy, Kant never says that revolution would involve the sort of self-contradiction
that Hobbes attributes to those who disobey the authority they themselves have consented to. Williams is
misattributing to Kant an analysis of the impermissibility of resistance that is more appropriate to Rousseau’s
Republic of the General Will in saying that “resistance… would represent resistance to ourselves as co-
legislators who bring the commonwealth into being” (2010, p. 381; see also p. 335n51 for criticism of Williams’s
tendency to exaggerate the importance of the idea of co-legislation in Kant).

472
may promptly give way to a new civil condition with the revolutionary as its summus

imperans. And true to his account of legitimacy, Kant has only one question to ask of this

new, revolutionary state: does it effectively protect its subjects through the rule of law? If it

does, then its tainted history is irrelevant to the revolutionary’s right to perform as a state

and we must therefore take him or her to be a duly authorized, “omnilateral” will entitled to

our obedience. “Even if a constitution more in conformity with law were attained

illegitimately, by the violence of a revolution engendered by a bad constitution, it could then

not be held permissible to lead the people bad to the old” by yet another violent political

project (PP 8:372-373).67 As individual persons, the revolutionaries will remain morally

accountable for their violent deeds because “the bad results of a wrongful action, can be

imputed to [them as] subject” (M 6:228). But now that the revolutionaries are in charge,

they are exempt from any form of legal punishment. They are “irreproachable,” “irresistible,”

and “irreversible” from the point of view of right (MM 6:316), just like any other legitimate

state.68

67 Kant here sells his argument short. He could also say, consistently with his view of legitimacy, that
even if a worse constitution resulted from a revolution, it would still be impermissible to oppose it by equally
revolutionary means. In any event, Kant’s original wording has the benefit of highlighting that his categorical
prohibition on revolution is consistent with the recognition of the fact that a revolutionary state may be, all
things considered, an improvement relative to its predecessor. Since Kant does not think that an action is right
insofar as it promotes a desirable state of affairs, both views can fit together without the need to appeal to his
philosophy of history to resolve an alleged “antinomy of ends and means” (Hassner 1987 [1963], p. 602; see
also Chapter 7.3 for the contrast between protection and promotion as criteria of for the rightness of action).
68 Reiss (1956, p. 183) calls attention to a passage were Kant seems to allow for one permissible scenario
of counter-revolution: “A dethroned monarch (who survives the upheaval) cannot be held to account, still less
be punished, for what he previously carried out, provided he return to the estate of a citizen and prefers peace
for himself and the state to the risk of running away in order to engage in the adventure of trying, as a claimant,
to get his throne back… But if he prefers the latter course, his right to do so cannot be challenged since the
insurrection that dispossessed him was unjust” (MM 6:323).
Although Fehér thinks that Kant’s statements in this respect “are contradictory” (1989, p. 176), I
actually find Nicholson’s explanation of this case entirely satisfying: “if [the dethroned monarch] accepts citizen
status he quits his claim to the throne, and, like every other subject, is not permitted to rebel; and if he seeks
his former throne, he is not a subject: therefore in neither case is he an exception to the rule that a subject must
not resist the sovereign since he falls either under it or outside it” (1976, p. 225). Should the dethroned
monarch choose to refuse to submit as subject, he stands in the same relation vis-à-vis the revolutionary state

473
9.4 A Realist Moralism

To the modern reader, Hobbes’s theory of state legitimacy must come across as

deeply unsatisfying. His account of consent makes the authorization condition for the right

to perform as a state too easy to satisfy, to the point that one may well wonder whether

Hobbes’s appeal to consent is not somewhat disingenuous. And though we may agree with

him on the importance effective protection, the preservation of life and limb and even a

“commodious living” enjoyed only by the grace of the ruler, cannot be enough to have a

satisfying political life. On the other hand, Rousseau’s Republic of the General Will promises

nearly everything one could wish for: a non-dominating political authority that ensures our

independence vis-à-vis every other person; a recurrent opportunity to partake in the

collective decisions of what the laws ought to be; a significant measure of socio-economic

inequality, etc. But just because it promises so much, the Republic of the General Will is

virtually impracticable. By Rousseau’s account, we are in all likelihood condemned to live

under the rule of illegitimate states. The only way out of the Rousseauian utopia is to return

to Hobbes’s original separation of the evaluative standards of the quality of a state’s

performance from the necessary conditions of the right to perform as a state.

I think Kant clearly saw the problem with the two extremes represented by Hobbes’s

and Rousseau’s theories of the state, and he endeavored to construct a theory of legitimacy

that could vindicate the authority of most actual states without conceding too much ground

as any other sovereign state, and so his actions fall under the right of nations rather than domestic law. The
original insurrection may be considered an act of hostility against the now-dethroned monarch, who would
then be justified in waging war against the revolutionary state as a fellow sovereign. In the absence of an
international legal order, this would constitute legitimate casus belli even for Kant (PP 8:346-347).

474
to just about any organized form of social power. In this sense, Kant shared Hobbes’s

political realism. Yet he also believed that a theory of politics had to be based on the priority

of individual freedom as understood in the republican tradition, and that only the rule of law

could possibly affirm our independence in the social world. By conditioning the authority of

a state as an “omnilateral” will to its capacity to institute the rule of law, Kant incorporated

the most important Rousseauian insight into his account of the right to perform as a state.

Kant’s attempt to reconcile Hobbes and Rousseau in this way does not strike me as an

“unhealthy mix” at all.69 On the contrary: it is an impressive, even if not entirely convincing,

effort to make an earnest sense of political realism compatible with a deeply moralized ideal

of political freedom.

69 Hill, Jr. 1997, p. 114

475
CONCLUSION

Hardly any argument is needed to show that the state, like most human artifacts, can

be a dangerous, inhumane, even perverse institution. At the same time, it is difficult to

imagine how we could live alongside others whom we do not know or have reason to trust

without an effective power that can give everyone assurance of other people’s minimally

sociable behavior. Of course, nothing much is gained if the institution that is meant to solve

the problem of assurance only exacerbates it. In Orwell’s Oceania, we cannot even trust the

meaning of words, much less other people, let alone the alleged “protector.” 1984 is a

portrayal of Kant’s barbarism, of the “tranquility of death” Rousseau found “more destructive

than war itself” (E IV, p. 312n), of a Hobbesian state of war in disguise. Sadly, there are too

many examples not from the world of fiction.

If one things back to the political horrors of the 20th century or to literary dystopias,

perhaps the most common theme is the arbitrariness of power; in the political systems we

dread the most, individuals are subject to the rule of arbitrium rather than law. “Another

lesson for tyrants: You do not subjugate people by taking everything from them. You

subjugate them by giving them something they know you can take away. Desperate people

477
aren’t always obedience. Dependent people usually are.”1 Hobbes’s distinction between the

right to perform as a state and the quality of the state’s performance forces us to think about

what is truly fundamental about the role of states in society; Rousseau and especially Kant

show—very persuasively, I think—that the rule of law is on a par with effective protection,

an absolute sine qua non of legitimate state authority. The Orwellian vision and Kant’s

political philosophy point in the same direction. Whatever else it does, the state ought to

rule by law, not arbitrium.

No doubt a modern theory of legitimacy would require much more than that.

Rousseau was right that the laws should also have democratic credentials, though we may

have to relax the requirement of direct popular law-making to accommodate the sociological

reality of large, industrialized societies. The point I wish to stress at the conclusion of this

examination into the thought of Hobbes, Rousseau, and Kant is this: a state that satisfies both

these conditions—the rule of law under some form of democratic control—has achieved a

great deal, even if we remain rightly dissatisfied with its shortcoming on other fronts. It is

all a question of perspective: if we look at present-day states from the heights of everything

we think they can and should become, we are bound to be deeply disappointed; if we see

things from the depths of how horrible barbarism and violence have always been, perhaps

there is more to say for the comparatively modest achievements of law and a working

representative democracy. There is much truth to that “liberalism of fear” so keenly aware

of everything that can go horribly when sheer force and arbitrium substitute for law.2

1 Bret Stephen, “Kim Jong-un and the Art of Tyranny.” The New York Times (September 7th, 2017).
2 On the “liberalism of fear,” see Shklar 1998 [1989] and Williams 2005. The political perspective that
focuses on democracy and the rule of law as prior to other considerations of social or distributive justice can
be less permissive than some of its alternatives. For a particularly forthcoming illustration, see Zoe Williams’s

478
Even an imperfectly democratic rule of law is a significant social achievement,

deserving of respect and protection.3 Of course, we are duty-bound to make such political

systems better in whichever way we can—and Kant thought as much. His argument for

“freedom of the pen,” that “sole palladium of the people’s rights” (TP 8:304), is his

characteristically conservative way of making room for progressive political forces that

work within an imperfect yet legitimate state. What must be ruled out is revolutionary

violence, particularly violence undertaken in the name of “the people.”

The Hobbesian thesis that the state is a person by fiction—a “personne morale”

(Rousseau) or “moralische Person” (Kant)—has the great virtue of conceptualizing the

enduring identity of a political community as supervening on, and thus outliving, the

individuals who make it up.4 A central implication of this view is that personating or

representing or speaking in the name of the people requires authoritative standing.

Regardless of the background idea of authorization—imputed consent for Hobbes, express

consent for Rousseau, or modal authorization for Kant—, nobody can unilaterally arrogate

to him or herself the spokesmanship of the people as a collective agent. The pretense to

personate this group agent is no minor business, as the individual members omnes et singuli

often have to bear the burden of “owning” the consequences of what is done in their name

omnes universi.

“Forget Fidel Castro’s policies. What matters is that he was a dictator,” The Guardian (November 27th, 2016).
(Williams is also spot-on about the political double standard of the arm-chair understanding of third-world
politics: “You cannot fete Castro as a noble failure while deriding Tony Blair as irredeemable. Principles are
like relationships; they don’t mean anything if you won’t put them in order of importance.”)
3 Sere Fuller 1969 and Simmonds 2007 for contemporary defenses of the intrinsic value of the rule of
law.
4 See Skinner 2008 for an eloquent defense of Hobbes’s “fictional theory of the state” (esp. pp. 360-364).

479
A self-appointed spokesperson for the people who violently threatens the stability of

a functioning democratic rule of law is doubly unjustified. For all their imperfections, such

forms of political authority may well have the right to perform as states.

480
LIST OF ABBREVIATIONS

Works by Thomas Hobbes (1588-1679)

References to Hobbes’s works are by chapter and section in Roman and Arabic numerals,
respectively, except for The Verse and Prose lives.

EL Elements of Law Natural and Politic (1640)

DCv De Cive (1642; English translation 1651)
L Leviathan (1651; Latin edition 1668)
DCr De Corpore (1655)
DH De Homine (1658)
VL The Verse Life (1672)
PL The Prose Life (1676)

Works by Jean-Jacques Rousseau (1712-1778)

References to Rousseau’s works are by chapter and section in Roman and Arabic numerals
respectively, or by paragraph number, with the exceptions of Emile and Letters Written from
the Mountain (both indicating page numbers of the edition cited in the References).

FD Discourse on the Sciences and Arts, or First Discourse (1750)

Ob Observations by Jean-Jacques Rousseau of Geneva on the Answer Made to his Discourse
(1751)
SD Discourse on the Origin and Foundations of Inequality Among Men, or Second Discourse
(1755)
LP Letter by J. J. Rousseau to M. Philopolis (1755)
EL Essay on the Origin of Languages (c. 1755)
PE Discourse on Political Economy (1755)
LVIS Letter on Virtue, the Individual, and Society (1757)
SW The State of War (1758)

481
GM From Of the Social Contract or Essay About the Form of the Republic, or Geneva
Manuscript (1762)
SC Of the Social Contract, or Principles of Political Right (1762)
E Emile, or On Education (1762)
LFM Letters Written from the Mountain (1764)
LM Letter to Mirabeau (1767)
GP Considerations on the Government of Poland and on its Projected Reformation (1771)

Works by Immanuel Kant (1724-1802)

References to Kant’s works are to the standard volume and page numbers of the Prussian
Academy Edition (Kants Gesammelte Schriften, herausgegeben von der Preussischen
Akademie der Wissenschaften zu Berlin [Berlin: Walter de Gruyter, 1902-1983], 29 Vols.).

EMH Essay on the Maladies of the Head (1764)

N&F Notes and Fragments (1764-1790s)
RPR Reflections on the Philosophy of Right (1766-1804)
CPR Critique of Pure Reason (A Edition: 1781; B Edition: 1787)
LF Natural Right Course Lecture Notes of Feyerabend (1784)
WE An Answer to the Question: What is Enlightenment? (1784)
IUH Idea for a Universal History (1784)
G Groundwork of the Metaphysics of Morals (1784)
RH Review of Herder’s Ideas for the Philosophy of the History of Humanity (1785)
CB Conjectural Beginnings of Human History (1786)
DTP Drafts for Theory and Practice (1793)
TP On the Common Saying: That May be Correct in Theory, but it is of no Use in Practice
(1793)
PP Toward Perpetual Peace (1795)
MM The Metaphysics of Morals (1797)
RL On a Supposed Right to Lie from Philanthropy (1797)
A Anthropology from a Pragmatic Point of View (1798)
CF The Conflict of the Faculties (1798)
LP Lectures on Pedagogy (1803)

482
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