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ForceandFreedom:KantsLegalandPolitical
Philosophy
JonMandle
Dialogue/Volume49/Issue03/September2010,pp479487
DOI:10.1017/S001221731000048X,Publishedonline:25November2010
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Dialogue 49 (2010), 479 487 .
Canadian Philosophical Association /Association canadienne de philosophie 2010
doi:10.1017/S001221731000048X
Critical Notice/tudes critique
Force and Freedom: Kants Legal and
Political Philosophy *

Force and Freedom is arguably the best book ever written on Kants legal and
political philosophy. There is no longer any excuse for the long-standing neglect
of Kants Doctrine of Right . Ripsteins work also has signicant implications for
contemporary political philosophy, philosophy of law, and ethical theory. He
demonstrates the incredible productivity of Kants Universal Principle of Right
Any action is right if it can coexist with everyones freedom in accordance
with a universal law (Ak. 6:230).
1
The sense of freedom at the root of this
conception is independence from being constrained by anothers choice (Ak.
6:237). From the moral requirement that we not be subordinated to the choices
of anyone else, Ripstein shows how Kant generates accounts of property, con-
tract, the authority and limits of state power, punishment, equality of opportunity,
elements of international law, and much else of great interest to contemporary
* Arthur Ripstein, Force and Freedom: Kants Legal and Political Philosophy
(Harvard, MA: Harvard University Press, 2009), 416 pp. $44.95).
JON MANDLE State University of New York at Albany
480 Dialogue
theorists. Although Ripstein does an extraordinary job in clearly explaining the
sometimes baroque structure of Kants Doctrine of Right , the text is free from
excessive quotations and the exposition is smooth. He relegates an exploration
of the relationship between the Universal Principle of Right and the deeper
aspects of Kantian metaphysics to a fascinating appendix.
The broad argument proceeds in three stages. At the rst stage, the Universal
Principle of Right generates the innate right to humanity. As Ripstein explains,
Your right to your own person guarantees that you are entitled to use your own
powers as you see t, consistent with the freedom of others to do the same
(p. 17). Because [y]our body enables you to set and pursue purposes in space and
time (p. 372), you can use your body to pursue any purpose that you choose, as
long as you do not undermine anyones capacity to set and pursue their own
ends. (That includes a prohibition on undermining your own capacity to set and
pursue ends.) This is an innate right it does not require any afrmative act
to establish it (p. 35) because there is not a merely accidental relationship
between you and your body your body just is your person (p. 372).
What we owe to others is that we not wrong them. In general, we wrong some-
one when we interfere with their powers to set and pursue their ends, either by
usurping them or by destroying them (p. 43). Obviously, I destroy your innate
powers when I injure or kill you. I usurp your powers if I exercise them for my
own purposes, or get you to exercise them for my purposes (p. 43). If I physi-
cally compel you into pursuing my ends rather than your own, or if I lie or trick
you into doing so, I have wronged you. At this stage in the argument, the prohibi-
tion on wronging others amounts to the requirement that we not use anyone elses
body for our own purposes. At later stages, this can take other forms. Notice,
however, that as a matter of right there is no requirement that we advance anyone
elses ends. Your entitlement to set and pursue your own ends may interfere with
or even be incompatible with my accomplishment of my ends without your
wronging me at all. You may achieve your goal of becoming the worlds fastest
sprinter, and thus prevent me from accomplishing my similar end, without
wronging me in any way. We do not owe each other assistance in accomplishing
our ends, nor even a favourable context in which to pursue them. Right is strictly
concerned with proper control of means who is entitled to determine for what
purposes they will be used not with the successful accomplishment of ends.
If you attempt to wrong me, if you attempt to use my means (such as my
body) for your own purposes, I have a right to resist. My resistance interferes
with your accomplishing your ends, of course, but you have no right to use my
body to accomplish your ends. I do. By resisting, I am simply exercising my
right to use my body for my own purposes rather than for yours. This shows
why, for Kant, Right is connected with an authorization to use coercion. [I]
f 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 hindering of a
hindrance to freedom ) is consistent with freedom in accordance with universal
laws, that is, it is right (Ak. 6:231). So in addition to being concerned strictly
Force and Freedom 481
with the control of means, right is also that area of morality that is concerned
with the proper use of force against others. As a matter of right, I can use the
means that I rightly control in ways that lack various moral virtues. I might be
selsh or spiteful. But these failures do not authorize the use of force to deprive
me of my means or to use them in more admirable ways. Indeed, as Ripstein
points out, attempts to enforce virtue beyond the limits of right would them-
selves be cases of unilateral force that others may resist with right (p. 160).
At the second stage of the argument, we notice that there are many objects
other than our own bodies that could be used as means to achieve our purposes.
Parallel to the case of our own bodies, property is a matter of who gets to de-
termine the purposes for which a material object is to be used. Unlike the case
of our bodies, however, a right to use some object could potentially be held by
different people. Such rights are not innate, but must somehow be acquired.
Note, however, that your acquisition of a property right changes the entitle-
ments of everyone else. They are no longer entitled to use those objects for
their own purposes. Only you are. So if you can acquire property unilaterally,
you are able to subject everyone elses capacity to set and pursue their ends to
your choice. This appears to be precisely contrary to the Universal Principle of
Rights requirement of equal freedom. Kant explicitly recognizes the dilemma,
and he resolves it by arguing that a public political structure must be in place
before any property rights can be acquired conclusively (Ak. 6:256). As Rip-
stein explains, Even though the nature of a property right can be explicated
exclusively in terms of private right, unowned objects cannot be acquired
except under the authority of a principle of public right (p. 97). This points to
the third stage of the argument, but before getting to that nal stage, there are
two other types of external objects still at issue here at the level of private right.
It is not only material objects that can potentially be used in pursuit of our
ends. We can also help each other, and we can make a commitment to other
people to act in certain ways. Through contract, we can grant other people
discretion over certain of our actions. It is not merely that they reasonably expect us
to act in a certain way. A contract establishes an entitlement: [Y]ou can demand
that I perform [the specied action], and a remedy if I fail to, because I have
failed to give you something to which you have a right (p. 69). Contracts create
consensual (partial) dependencies, as one persons act is placed consensually
and therefore rightfully under the control of another. There are also some cir-
cumstances in which dependencies are non-consensual, and these are what Kant
calls relations of status. The most obvious of these cases involves children.
The idea is simply that in these circumstances, the one who possesses or controls
the other does not have discretion over the ends to which the dependents means
are used and therefore does not have full discretion over the means. They must
serve the interests of the dependent, and at least in the case of children, they must
serve their interest in becoming free and equal agents.
Violations of property rights, contracts, and status relations all involve
wrongs to particular individuals. As in the case of ones own body, one is
482 Dialogue
wronged if ones property is destroyed or used for a purpose set by someone
else. Ripstein points out that Your property constrains others because it
comprises the external means that you use in setting and pursuing pur-
poses; if someone interferes with your property, he thereby interferes with
your purposiveness (p. 91). As in the case of ones own body, one may use
force in resisting such encroachments. If I wrongfully take physical posses-
sion of your property, you can take it back. If I commit to act in a certain
way through a contract with you and I fail to act accordingly, I have de-
prived you of something over which you have rightful control. I have
wronged you just as I would have done if I had destroyed your property,
and you are entitled to compensation. Relations of status allow both parties
to expand their purposiveness. The dependent can achieve ends that might
otherwise be inaccessible, and the agent gains limited discretion over
certain means. Interference with such relations wrongs both parties.
The third stage of the argument begins by noting that while we can under-
stand the structure of property rights, contracts, and relations of status as exten-
sions of the innate right of freedom of private individuals interacting in time
and space, individuals cannot conclusively acquire enforceable property rights
or form binding contracts in a state of nature. They need a legitimate political
society as background, or what Kant calls a rightful condition. While the
form of interaction in which property rights constrain the conduct of others
does not depend on positive law (p. 87), such laws are necessary background
conditions for any particular rights to be determinate and enforceable. This is
because, as noted above, my acquisition of property binds everyone else, and a
unilateral action by itself cannot change the rights of everyone else. That would
amount to subordinating everyone elses will to my own, in violation of the
Universal Principle of Right. In fact, the state of nature has three normative
defects that lead Kant to conclude that it is a condition devoid of justice (Ak.
312). Ripstein identies the three defects as problems of acquisition, enforce-
ment, and indeterminacy. Contrary to the familiar state of nature arguments of
Hobbes and Locke, none of these defects is dependent on empirical assump-
tions such as claims about human nature or material scarcity. In the state of
nature, any attempt to acquire, enforce, or make rights determinate would rely
on a unilateral will to which all others would be subordinated. According to
Ripstein, The three defects are distinct, but have a parallel structure: nobody
is under any obligation to defer to the deeds, claims, or judgments of others,
unless appropriate institutions are in place (p. 147).
The three defects also have parallel solutions in the creation of a legitimate
political society with three branches of government: the legislature establishes
the legitimate means of acquiring rights; the executive enforces rights; and
the judiciary resolves indeterminacies in their application. So we can, in fact,
have unilateral acquisition I can acquire property rights that bind you and
everyone else but only when there is a system of law that binds everyone
Force and Freedom 483
and authorizes me and everyone else to acquire property in a certain way. As
Ripstein explains, If the public authority is entitled to confer the power on me
in the name of everyone, then my specic exercise of the power is also in
everyones name (p. 154). He goes on to emphasize that States claim powers
that no private person [or combination of private persons] could have
(p. 145). This appears paradoxical only if we assume that public powers must
be reducible to private powers. Rather than trying to reduce the public to the
private, Ripstein points out, Kants argument shows that the private is only
rightful in the context of the public (p. 156).
It still may not be clear how a political society could resolve the normative
defects of the state of nature. After all, it will be individual human beings who
will be creating, enforcing, and applying laws. And if the state of nature is de-
fective because rights would require subordinating the deeds, claims, and judg-
ments of one person to others, isnt that still the case in political society? The
answer is that it is not private individuals who can create, enforce, and apply
laws. It is legislators, executives, and judges who do so that is, individuals
acting in an institutional capacity under a mandate:
An ofcial is permitted only to act for the purposes dened by that mandate. The concept of an
ofcial role thus introduces a distinction between the mandate created by the ofce and the
private purposes of the ofceholder. That distinction shows what it is for laws rather than
people to rule, even though the actual ruling is done by people. (p. 192)
Acting within a mandate means that an ofcial can act only on the basis of
certain reasons related to that position. This structure parallels the relationship
of status, according to Ripstein, in that an ofcial is legally empowered to
make arrangements for others, and is thereby prohibited from using his or her
ofce for private purposes (p. 193). Unlike the case of guardians whose posi-
tions may require that they act in the best interests of their dependents, however,
Ripstein interprets Kant as insisting that the only public interest to be served by
political ofcials is establishing and maintaining a rightful condition and
thereby securing the rights of citizens. They may not aim at advancing any
material interests, for example, except insofar as that is tied to securing or
maintaining a rightful condition.
If political society is required in order to secure private rights, and its mandate
is limited to securing and maintaining a rightful condition, it might appear that
this would make Kant a kind of libertarian. Ripstein argues, however, that most
of the familiar activities of modern states (p. 223) including the creation of
roads and other public spaces, redistribution for the relief of poverty, the macro-
management of the economy, and publicly funded education can be under-
stood as contributing to a rightful condition and therefore may be legitimate state
functions. The problem of poverty, for example, is not that many desires are left
unsatised. Rather, Ripstein points out, the problem is that the poor are com-
pletely subject to the choice of those in more fortunate circumstances (p. 274).
484 Dialogue
A system of property that created such dependency would be inconsistent with a
system of equal freedom. Therefore, he concludes, the only way that prop-
erty rights can be made enforceable is if the system that makes them so contains
a provision for protecting against private dependence (p. 278). The state, but no
private individual, may impose taxes for the purpose of relieving poverty as part
of a scheme of equal freedom.
Ofcials must act within their mandates, but they have wide discretion in
exercising their judgment about what those mandates require in specic cir-
cumstances. The limitation on their discretion, explains Ripstein, is expressed
in Kants idea of the original contract that ofcials cannot make arrange-
ments for the people that those people could not make for themselves (p. 26).
The people may not give themselves laws that destroy their freedom, either
collectively or individually, by subordinating themselves to private individuals,
so ofcials cannot do that either. Thus, no legitimate law can establish slavery
or deny freedom of association because, as Ripstein explains, Part of your
entitlement to set and pursue your own purposes is the entitlement to choose
those with whom you will make arrangements, subject only to their entitlement
to decline to enter into arrangements with you (p. 210). It is up to ofcials,
through their institutional mandates, however, to give authoritative interpreta-
tions of what these require in concrete circumstances. Ripstein argues that If
a validly enacted statute could be agreed to, citizens are required to regard it as
[having been collectively authorized]. If it could not, it lacks the force of law
(p. 214). The possibility of collective agreement draws the limits on legitimate
law. Within those limits, the actual acts of the legislature make law binding.
The introduction of legitimate law through public right introduces a new
class of wrongs. In addition to wronging particular private individuals it now
becomes possible to wrong the state, that is, to act contrary to the right of the
state to make law. Because laws are justied insofar as they are authoritatively
judged to protect a scheme of equal freedom, criminal acts are public wrongs
they are contrary to the rights of all citizens. Many criminal acts violate both
private and public rights. Theft violates an individuals property rights so is a
private wrong. The rightful owners rights persist through the violation, which
is why the owner is entitled to resist the theft or to recover her property (when
that is possible) or to receive compensation (when it is not). A similar structure
applies to violations of public right. Acts that violate the law, explains Ripstein,
are legally void and the law remains normatively unchanged it still governs
conduct (p. 306). Punishment is nothing more than the persistence of the laws
normative authority in the face of its empirical violation. The state asserts
the authority of its laws by refusing to recognize the validity of the criminals
act. It reinterprets his principle of action in a way consistent with its authority:
[W]here he sought exemption [from the law], he receives exclusion, so that
the law remains supreme (p. 308). Through his act, the criminal asserts that
part of the scheme of equal freedom some law doesnt apply to him. The
state maintains that there can be no exceptions, and makes it so by interpreting
Force and Freedom 485
his act as self-exclusion from the scheme of equal freedom. As a public wrong,
theft is contrary to legitimate property law. By stealing, the criminal attempts
to assert that the law of property does not apply to her. The state responds that
the law of property continues to apply, but that she is excluded from it in a
different sense than what she intended. It insists, according to Ripstein, that
no external object be subject to her choice; she would not be allowed to ac-
quire anything and would only be able to use things with the permission of
others (p. 316). The point generalizes beyond property crimes: Because ev-
ery crime is formally a self-exemption from public law, exclusion from the
system of freedom must be the appropriate punishment. Every form
of punishment will thus be a form of exclusion from full participation in civil
society (p. 317).
It is worth emphasizing how dramatically this account of punishment
departs from standard approaches. Punishment is not justied in terms of the
good effects that it is likely to bring about, such as increased security through
deterrence or some measure of desert by making the evil suffer. While a system
of punishment may be likely to produce such results, it cannot be justied
in terms of its promotion of any external goals. Instead, in Ripsteins words,
[P]unishment is nothing more than the supremacy of the rule of law (pp. 323-
324) in the face of attempts to deny that. It is inherent in the idea of a rightful
condition (p. 301) and does not depend on empirical assumptions about
human motivations or likely effects. Ripstein admits that the analytic connec-
tion between a crime and its punishment may be less clear and direct than the
example of theft suggests (p. 316). The punishment that is required the spe-
cic type and length of exclusion from full participation in the civil societys
system of freedom will depend on the judgment of ofcials. Still, the internal
relation must be there, and this provides the connection to the principle of lex
talionis : The appropriate quantum of connement the length of the prison
term must be proportional to the gravity of the wrong (pp. 317-318). This
is because the criminal asserts his own exclusion from some particular law, and
the normative authority of that particular law must be upheld.
Because Force and Freedom is largely conned to describing part of the
metaphysics of morals, it lays out the structure of right a priori on the assump-
tion that we are rational beings embodied in time and space. As Ripstein
emphasizes, this broad structure must be interpreted and applied in order to
generate most of our concrete rights and duties. This requirement is precisely
why we need a system of public right and political institutions. Ofcials must
exercise judgment in making these determinations. Ripstein insists that there is
no algorithm or heuristic for generating particular laws (p. 214). The frame-
work does not give ofcials detailed criteria to apply nor, in fact, is there
a pre-institutional answer about what they should do in every conceivable
case that comes before them (p. 256). This seems correct, yet I believe that
there is a fertile middle ground between the purely a priori and the most con-
crete determinations of specic rights and duties.
486 Dialogue
This normative terrain comes into view when we ask how a society, through
its legislators and beyond them its citizens generally, should deliberate among
permissible laws. This framework for deliberation is a societys public rea-
son. As we saw above, Ripstein argues that the requirement that all exercises
of state power be derived from the duty to create [and maintain] a rightful
condition is a real constraint, but it does not preclude most of the familiar
activities of modern states (p. 223). He illustrates this with arguments that
aim to show how public roads, markets, public health provisions, national
defense, public education, economic development, public provision against
poverty, and much else can be justied within this framework. Some of these
are detailed while others are mere sketches, but all are subject to multiple
legitimate interpretations. We should view as binding whatever the legitimate
political institutions make the law to be, but how should participants in the
political process decide which permissible scheme they should endorse? At
one point, Ripstein mentions that factors such as efciency, consistency, fair-
ness, convenience, and even what people will nd more pleasant or conve-
nient, or what will make citizens nd particular rules sensible or fair (p. 256)
might all be relevant in making concrete determinations. On the other hand,
that an individual legislator would prot from such a provision is never a
relevant consideration. How can we decide which considerations are properly
public reasons and which not, and, more importantly, how can we assess the
weight or signicance of each consideration? Whether a particular society
should provide a public transportation system, pay subsidies to private
schools, or invest in expensive life-extending medical equipment will depend
on the particular details of that society. But between the a priori and the con-
crete, there is room for productive normative investigations that depend on
general facts about the circumstances of modern democratic societies. Mod-
erate scarcity and the diversity of religious faiths may not be assumptions that
we need to make in order to generate an account of the formal structure of
right, but they can properly be incorporated into an account of a societys
public reason.
Still, Ripsteins concern is Kants in the Doctrine of Right , namely, the for-
mal structure of right that is generated from the assumption that no person may
be subordinated to the choice of another. Each is entitled to set and pursue his
or her own ends, consistent with a like ability of others to do the same. There-
fore, says Ripstein, a wrong is always a wrong against some other person in
particular (p. 382) or against a legitimate state which is itself necessary to
secure individual rights. Understood in this way, right is strictly concerned
with control of means rather than with the pursuit of proper ends. The justica-
tion of coercion does not depend on its effectiveness in bringing about any
desirable end. It is simply a direct expression of the idea of the right to set ones
own ends and to use ones own means in pursuing them. Other virtues are,
however, concerned with proper ends. Benevolence, for example, directs us to
promote certain ends; namely, the good of others.
Force and Freedom 487
Kantian right protects individuals whether they are selsh or benevolent.
Because of this, it might appear vulnerable to the common charge against liberal
theories of justice that they rely on an atomistic, self-interested model of the
person. This criticism may be due in part to an excessive focus on the rst two
stages of development the innate right to humanity and private law. It is worth
remembering that even in the account of private law, Kant recognizes relation-
ships of non-consensual interaction in his discussion of status. More impor-
tantly, the normative defects in the state of nature show precisely that this
private law alone is radically incomplete. It is a fundamental imperative that we
establish a legitimate system of public right. As Kant says, anyone remaining
in the state of nature does wrong in the highest degree (Ak. 6:308). And while
the need for public right arises from intrinsic defects of private right considered
in its absence, public right is not limited to enforcing the private rights that may
be thought to precede it. On the contrary, as we have seen and Ripstein points
out, a rightful condition gives the state a series of further powers that no pri-
vate person could have (p. 232). While no private individual can force anyone
else to provide the material conditions necessary to relieve poverty, the state
can and must do exactly that. Right does not require benevolence, but in the
form of public right it does not permit indifference to material want.
Leaving aside a misguided emphasis on private right, it is true that the Kantian
view attributes a certain priority to an account of right over other virtues. There
are two senses of this priority. First, as Ripstein explains, the promotion of
other peoples happiness or their own self-perfection could come into conict
unless there were some way of limiting the external means that are acceptable
in pursuit of either (p. 385). The principles of right must be available and
recognized as binding prior to any assessments of the other virtues. Second, the
principles of right, and not any of the other virtues, authorize the use of coer-
cion. No other virtue could justify the use of coercion without undermining the
system of right. If force could be used in promoting such an end, the principles
of right would at the same time authorize the use of force in resistance, and a
system of equal freedom would then be impossible. Some may continue to in-
sist that certain ends are of such great intrinsic value that they justify the use of
force in their pursuit. Utilitarians hold this and argue that force is objectionable
only insofar as it leads to a decrease in aggregate utility. Luck egalitarianism
posits a different aim, but the precise end in question is irrelevant. What
Ripstein shows is that while we may value such material ends, they cannot
authorize the use of force without undermining a scheme of equal freedom
among persons and subordinating some to the choices of others.
2

Notes
1 Quotations from the Doctrine of Right are from Mary Gregorys translation of The
Metaphysics of Morals (Cambridge, 1996). Citations are to the standard Prussian
Academy pagination.
2 Thanks to Kristen Hessler, Pete Murray, David Reidy, and Arthur Ripstein.