In this paper I criticize a growing movement within public policy circles that self-identifies as neoliberal. The issue I take up here is the sense in which the neoliberal label signals a turn away from libertarian political philosophy. The are many import ant figures in this movement, but my focus here will be on Will Wilkinson of the Niskanen Center, not least because he has most prolifically written against libertarian political philosophy. Neoliberals oppose the idea that the rights that libertarianism (...) claims people have are useful guides for making the world a freer place because they forestall too much governmental/democratic political action that they purport to be necessary for increasing freedom. Wilkinson mistakenly takes libertarianism to be a set of ideal public policies for achieving a perfectly free society. If it were, he would be right to turn away from it. But placing rights to freedom at the center of their theory of justice does not commit libertarians to an all-or-nothing approach to political change. Consequences and strategy matter – particularly in a non-ideal world – without abandoning the idea that each individual has a right to freedom. In mistaking libertarian moral claims as a set of policy prescriptions, Wilkinson complains that idealistic policy prescriptions not only fail to take account of how those who disagree will respond to such policies if implemented, but also thereby undermines the justice of those policies in the first instance. Wilkinson proposes that change in the direction of freedom must go through the proper channels of actually-existing democratic legitimacy. It as this stage that Wilkinson’s project comes into direct conflict with libertarianism. Whilst libertarianism is not committed to any particular method of creating a free society under non-ideal conditions, and therefore does not rule out democratic political activism as one among many means of doing that, it cannot be committed to the permanence of democratic political authority, and this is what Wilkinson’s neoliberalism demands above all else. It turns out that Foucault’s characterization of neoliberalism long ago is still accurate to Wilkinson’s own view: that neoliberalism is not about creating a society of free individuals, it is about designing the state apparatus in ways that are inspired by the workings of free society – it is about legitimizing the chains, not breaking them. Neoliberalism is not a pragmatic alternative to libertarianism, but rather a gross misapplication of it. (shrink)

Kant’s discussion of the highest good is subject to continuous disagreement between the proponents of two interpretations of this concept. According to the secular interpretation, Kant conceived of the highest good as a political ideal which can be realized through human agency alone, albeit only from the Critique of the Power of Judgement onwards. By way of contrast, proponents of the theological interpretation find Kant’s treatment of the highest good in his later works to be wholly coherent with the discussions (...) of this concept found in the second Critique. In their view, however, Kant never conceived of the highest good as a political ideal, and some go as far as to argue that it is the work of God alone. In this article, I defend a theologico-political account of the highest good that avoids the pitfalls of both readings. (shrink)

In Giorgio Agamben’s eyes, Immanuel Kant’s work is the modern philosophical harbinger of the catastrophic ‘state of exception’. By focusing on the latter’s ‘author/subject corrective’, I make the connection between Agamben and Kant’s Critique of Pure Reason more apparent. In doing so, I show how Kant’s corrective instrumentalises autonomy in such a way that it compromises the validity it seeks to rationalise; it does so by separating the individual from actuality, by ostracising law from political challenge, and by conflating individual (...) and state interests. Taken together, these three undercurrents are defining features of Agamben’s ‘Homo Sacer’ series. (shrink)

In Giorgio Agamben’s eyes, Immanuel Kant’s work is the modern philosophical harbinger of the catastrophic ‘state of exception’. By focusing on the latter’s ‘author/subject corrective’, I make the connection between Agamben and Kant’s Critique of Pure Reason more apparent. In doing so, I show how Kant’s corrective instrumentalises autonomy in such a way that it compromises the validity it seeks to rationalise; it does so by separating the individual from actuality, by ostracising law from political challenge, and by conflating individual (...) and state interests. Taken together, these three undercurrents are defining features of Agamben’s ‘Homo Sacer’ series. (shrink)

The two standard interpretations of Kant’s view of the relationship between external freedom and public law make one of the terms a means for the production of the other: either public law is justified as a means to external freedom, or external freedom is justified as a means for producing a system of public law. This article defends an alternative, constitutive interpretation: public law is justified because it is partly constitutive of external freedom. The constitutive view requires conceiving of external (...) freedom in a novel, second-personal way, that is, as an irreducibly relational norm. (shrink)

What is the relationship between human rights and the rights of states? Roughly, while cosmopolitans insist that international morality must regard as basic the interests of individuals, statists maintain that the state is of fundamental moral significance. This article defends a relational version of statism. Human rights are ultimately grounded in a relational norm of reciprocal independence and set limits to the exercise of public authority, but, contra the cosmopolitan, the state is of fundamental moral significance. A relational account promises (...) to justify a limited conception of state sovereignty while avoiding the familiar cosmopolitan criticisms of statist accounts. (shrink)

Kant’s theory of citizenship replaces the French revolutionary triptych of liberty, equality and fraternity with freedom (Freiheit), equality (Gleichheit) and civil self-sufficiency (Selbständigkeit). The interpretative question is what the third attribute adds to the first two: what does self-sufficiency add to free consent by juridical equals? This article argues that Selbständigkeit adds the idea of interdependent independence: the independent possession and use of citizens’ interdependent rightful powers. Kant thinks of the modern state as an organism whose members are agents possessed (...) of rightful (productive) powers, whose interdependent mode of exercise independently of unilateral permission matters for right. The empirical form of that ideal, according to Kant, is a republic of independent commodity producers. I will show that this reading of Selbständigkeit can consistently explain Kant’s disenfranchisement of women, wage labourers and landless farmers; that it offers a robust alternative to influential republican, libertarian and proprietarian interpretations of the Kantian state; and that it can buttress an original account of community as productive interdependence. (shrink)

When assessing institutions and social outcomes, it matters how free society is within them (‘societal freedom’). For example, does capitalism come with greater societal freedom than socialism? For such judgements, freedom theorists typically assume Individualism: societal freedom is simply the aggregate of individual freedom. However, G.A. Cohen’s well-known case provides a challenge: imagine ten prisoners are individually free to leave their prison but doing so would incarcerate the remaining nine. Assume further that no one actually leaves. If we adopt Individualism (...) plus the standard liberal view of freedom, such incarceration seems to leave societal freedom unaffected. This is an important theoretical challenge: it seems we must either reject Individualism or reject, or at least amend, the liberal view. Cohen also suggests his case, and the collective unfreedom therein, helps us capture how proletarians are unfree under capitalism. In this article, I argue that we can solve Cohen’s puzzle, if we focus on how power can reduce freedom. If we adopt the republican view of freedom, we can say that prisoners are unfree in Cohen’s case because they are dominated by the other prisoners. This solution keeps Individualism but moves beyond liberal freedom. I then also show how this individualistic framework captures proletarian unfreedom. (shrink)

The state regulates the way in which social power is exercised. It sometimes permits, enables, constrains, forbids how we may touch others, make offers, draw up contracts, use, alter, possess and destroy things that matter to people, manipulate, induce weakness of the will, coerce, engage in physical force, persuade, selectively divulge information, lie, enchant, coax, convince, … In each of these cases, we (sometimes unintentionally) get others to act in ways that serve our interests. Which such exercises of power should (...) the state forbid? Which should it permit? An intuitively appealing way to answer this question is, with Ripstein and Kant, to point to the role of freedom: exercises of social power can be legitimately prohibited when (and only when) they restrict people's freedom. But this raises a further question: How do we identify when such exercises of power make people unfree in the relevant sense? Ripstein, in defending Kant, draws a crucial distinction between actions that subject others’ wills to our choices (and which it would therefore be presumptively legitimate for the state to forbid) and actions that merely affect the contexts in which others act (and which it would therefore be presumptively illegitimate for the state to forbid). I query that distinction, and argue that the idea of independence cannot bear, on its own, the weight it is expected to bear within the Kantian framework. (shrink)

An influential interpretation of Kant’s Doctrine of Right suggests that the relationship between public right and freedom is constitutive rather than instrumental. The focus has been on domestic right and members’ relations to their own state. This has resulted in a statist bias which has not adequately dealt with the fact that Kant regards public right as a system composed of three levels – domestic, international and cosmopolitan right. This article suggests that the constitutive relationship is between all levels of (...) right, on the one hand, and ‘freedom in the external relation’ of all human beings, on the other hand. (shrink)

Abstract In his 2009 article "Right and Coercion," Marcus Willaschek argues that the Categorical Imperative and the Universal Principle of Right are conceptually independent of one another because (1) the concept of right and the authorization to use coercion are analytically connected in Kant's "Doctrine of Right", but (2) the authorization to coerce cannot be derived from the Categorical Imperative. Given that the principle of right just is a principle of authorized coercion, the fact that the authorization to coerce cannot (...) be derived from the Categorical Imperative implies that the Principle of Right cannot be derived from the Categorical Imperative. Against this claim, I first argue that a satisfactory deduction of the concept of right can be constructed out of the Categorical Imperative, the fact that we are embodied, and the fact that we act from motives other than duty. I then argue that the insufficiency of the Categorical Imperative, by itself, to generate the Principle of Right does not prevent us from interpreting the Principle of Right as a specification of the Categorical Imperative. I develop this point by means of an analogy with Kant's discussion of the moral law and the Categorical Imperative in the Groundwork. (shrink)

This article takes issue with the common view that cosmopolitan normative commitments are incompatible with recognition of state sovereignty as a basic principle of international law. Against influential cosmopolitans, who at best ascribe a derivative significance to the sovereignty of states, the article argues that state sovereignty is not only compatible with, but also essential to the recognition of individuals as units of ultimate concern. The argument challenges a problematic distributive conception of justice underlying many cosmopolitans’ support for reforms of (...) the international legal order towards a system where respect for basic human rights is the only criterion for political legitimacy. An alternative relational conception of justice makes it possible to see why there is an internal connection between the rights of individuals and the rights of states. The argument adds up to a novel defence of the so-called domestic analogy, which regards the territorial integrity of states as an internationa... (shrink)

Immanuel Kant’s political philosophy has enjoyed renewed attention as an egalitarian alternative to contemporary inequality since it seems to uncompromisingly reassert the primacy of the state over the economy, enabling it to defend the modern welfare state against encroaching neoliberal markets. However, I argue that, when understood as a free-standing approach to politics, Kant’s doctrine of right shares essential features with the prevailing theories that legitimate really existing economic inequality. Like Friedrich Hayek and Milton Friedman, Kant understands the state’s function (...) as essentially coercive and, in justifying state coercion, he adopts a narrow conception of political freedom that formally preserves the right to choose while denying that the range of choices one actually has can be a matter of justice. As a result, Kant cannot identify various forms of social pressure as potential injustices even as he recognizes their power to create and sustain troubling inequalities. For both Kant and the neoliberals, the result is that economic relations almost never count as unjust forms of coercion, no matter how unequal they are. Views that identify coercion as the trigger for duties of justice are thus particularly ill-suited to orient us to contemporary inequality. (shrink)

The paper provides a systematic account of Kant’s ‘right to be somewhere’ as introduced in the Doctrine of Right. My claim is that Kant’s concern with the concurrent existence of a plurality of corporeal agents on the earth’s surface occupies a rarely appreciated conceptual space in his mature political philosophy. In grounding a particular kind of moral relation that is ‘external’ but not property-mediated, it provides us with a fundamentally new perspective on Kant’s cosmopolitanism, which I construe as a cosmopolitanism (...) for ‘earth dwellers’. (shrink)

What is domination? According to a leading strand of republican political philosophy, a person is dominated when under the unconstrained power of another. Call this the dyadic conception of domination, because it involves a two‐person relation. I argue that domination is better understood structurally. Structural domination is domination by institutions. Rather than a master dominating a slave and a boss dominating a worker (as in dyadic domination), structural domination holds that the institution of slavery dominates the slave and labor law (...) dominates the worker. Without the structural conception, I contend, one misdescribes the power dynamics of paradigm cases of domination. (shrink)

The coercive authority of the Kantian state is rationally grounded in the ideal of equal external freedom, which is realized when each individual can choose and act without being constrained by another's will. This ideal does not seem like it can justify state-mandated economic redistribution. For if one is externally free just as long as one can choose and act without being constrained by another, then only direct slavery, serfdom, or other systems of overt control seem to threaten external freedom. (...) Yet Kant endows the freedom-based state with considerable powers of economic redistribution. I argue that recent commentary has misunderstood both Kant's account of why poverty is a form of freedom-threatening dependence and the extent of the Kantian state's powers for remedying poverty. Criticizing Arthur Ripstein and the Kantianism of the “Toronto-School,” I argue that the most salient notion of dependence at issue within the Kantian framework is not the direct control of the choice-making capacities of another but asymmetrical influence in a power relationship. For Kant, poverty is fundamentally a problem of structural disempowerment. (shrink)

Recently, scholars have criticized what they call the “Kantian-Republican” thesis of freedom as non-domination. The main complaint is that domination is unavoidable. This concern can be separated into the problem of state domination, which suggests that the state's intervening powers necessarily dominate its citizens, and the problem of majority domination, which suggests that the People necessarily dominate individual citizen as a result of the potential to form dominating majorities.

European Journal of Philosophy, Volume 30, Issue 2, Page 823-839, June 2022.

O texto visa a apresentar, de modo mais sistemático, a crítica que Habermas endereça a quatro autores fundamentais da filosofia do direito: Hobbes, Kant, Weber e Rawls. O estudo se concentra em demonstrar como Habermas entende o papel da moral na argumentação de cada um deles, tendo em vista a fundamentação do direito.

Resumo: Uma das características comuns dos primeiros filósofos modernos da Europa Ocidental é a ênfase na liberdade e na igualdade. Os filósofos desse período buscavam respostas para “o que é liberdade e igualdade?” e transformaram a liberdade e a igualdade em direitos humanos fundamentais. De John Locke a Montesquieu e Jean Jacques Rousseau, todos consideram a liberdade e a igualdade como direitos naturais do ser humano. O conceito de liberdade e igualdade de Rousseau é refletido em O Contrato Social. No (...) início desse trabalho, ele comentou, com uma famosa frase de abertura: “O homem nasce livre, mas está em toda parte acorrentado.” Esse é o argumento fundamental para dar uma visão única de liberdade e igualdade. Dentro do escopo do artigo, o autor se concentra em analisar seus pontos de vista sobre liberdade e igualdade, em muitos aspectos diferentes - liberdade e igualdade, no estado de natureza, liberdade e igualdade, na sociedade civil, e como alcançar a liberdade e a igualdade - apresentando, assim, os valores e as limitações de seus pontos de vista sobre liberdade e igualdade. (shrink)

This paper claims that a particular interpretation of Kant`s legal-political philosophy, as it is presented in his Doctrine of Right, provides us with the much needed resolution to the question of the normativity of law, precisely because it brings in a perspective that avoids both positivism and ethicism. This particular interpretation follows a strategy of argumentation that I call the “argument for the intrinsic normativity of law”, i.e., the argument that law is defined and justified on its own grounds, without (...) any need to refer to ethics, or rational/enlightened self-interest. This argument highlights the concept of legal person with the innate right to freedom as the necessary presupposition of legal practices, and sets forth a fundamental sense of justice inherent to the concept of law that consists in the reciprocal recognition of legal personality. In the end, I come up with a distinctive conception of law that I formulate as a last resort of normativity in the face of a conflict wherein an ethical solution does not appeal to all parties. (shrink)

In this essay I discuss the issue of Kantian hospitality and how Katrin Flikschuh’s arguments in “Kant’s Nomads: Encountering Strangers” offer us a framework for dealing with certain problems that seem to arise out of the Kantian account, namely, problems of dealing with cultures unlike modern liberal states, such as nomadic and indigenous communities. I look at some criticisms of Kant’s position on hospitality and cosmopolitan right and on how Flikschuh’s discussion helps to resolve these criticisms. I focus especially on (...) her discussion of respectful interaction and openness in the course of encountering cultural others, encounters that inherently and positively contain a large element of unexpectedness. (shrink)

There is a tendency within the literature to decry Kant as either a proto-imperialist or as a proto-democrat in relation to his views on distant strangers. I here take an alternative view, arguing that Kant’s cosmopolitan morality is considerably more context-sensitive than is often assumed. More specifically, I argue that Kant’s encounter with American nomads on the final pages of his Doctrine of Right reflects a nuanced reading of European settlers’ requisite comportment towards them: Kant neither endorses a universal duty (...) of state entrance nor does he place nomads beyond all possible moral engagement with European settlers. (shrink)