Why Kant is more Libertarian than Locke

This is all a work in progress.

Broadly, justification usually focuses on the giving of reasons. The belief that p is justified if and only if there is sufficient reason to believe that p. Similarly, political justification typically involves advancing reasons to support (a) certain aspects of the political, e.g. instititions or policy proposals, or (b) the political order as a whole.

In epistemology, "justification" is what separates mere belief from knowledge (Gettier type issues shall be set aside, for the moment.) Political justification is what separates right political action from the mere exercise of force. If a given law is justified, then the government is entitled to enforce that law. Whether citizens are morally obligated to obey a justified law is something I doubt, but we can distinguish -- surely -- between a law that meets certain moral criteria, or that is intended to promote a just end, and the raw force the mugger uses to subdue his victim.

(Some libertarians are unwilling to make this distinction. But I think they do make it regardless: Take two possible worlds, both containing governments. In World 1, the government uses its power to educate citizens who could not otherwise afford an education. In World 2, the government uses its power to kill minorities. Obviously, there is something better about World 1, even if neither world is morally ideal. This shows we can distinguish between morally better and worse uses of government power.)

Justification depends on the existence of reasons. A common theme in liberal thought is that those who exercise political power must offer reasons to those against whom that power is to be exercised. These must not only be valid reasons (as justification always requires) but reasons that the subjects of political power will recognize as valid reasons.

Thus, liberal political justification proceeds from a restricted set of reasons. Not every valid reason will be recognized as such by the subjects of political power. Reasonable people can disagree about what counts as a valid reason. This restriction on reasons, rather than weakening the liberal view, gives it its strength and character, at least according to some. The laws liberals tend to worry about the most -- laws infringing on religious worship, freedom of expression, association, and so on -- are exactly the kinds of laws that can only be justified by moving outside the restricted set of reasons. Or so the argument will go.

Liberal justification, by restricting the reason set, limits what government can justifiably do. This limit carves out a domain in which individuals can govern their own lives according to the reasons they accept as valid. When government steps into that domain, it steps into it without warrant, as its justification will be unacceptable at least to those whose lives are subject to such interference.

It should be clear from this sketch that liberal justification puts limits on government precisely through its universalist aspirations. It is because the political order has to be justified to each and every person subject to its power that the result is a drastically limited government. Why this is a requirement of political justification is something of an open question.

The most direct route to this requirement, in my opinion, is through the second version of Kant's categorical imperative: we fail to treat others as ends in themselves if we exercise force against them without seeking justification; and this justification must be addressed to each and every person, since each has dignity that cannot be sacrificed in the pursuit of other ends.

Without such justification, the law simply treats some as means to the ends of others.

In my view, there is a line between Locke and Kant on this issue. For Locke, political justification requires the free consent of the governed. For Kant, political justification requires the rational consent of the governed. Since, for Kant, rational consent is always free (reason being the free part of us, the self-in-itself), one might think that there is complete convergence between the two thinkers. This is not so, for one reason: for Locke, consent can and probably will be motivated by many factors. An inept, intolerant government will fail to get the consent of the governed because it will fail to serve the interests of the governed. Government must actually serve the interests of all to be justified.

Kant accepts a dichotomy between interests and reason. But because reason by its nature demands freedom, it is the fact -- and only the fact -- that a government supports freedom that can establish rational consent. An unfree government that was very good at serving the interests of the governed might gain actual consent, but it would never gain rational consent. Reason seeks the freedom to govern itself; nothing less than this -- no matter how efficient, or good-promoting -- will be rationally acceptable.

The dignity of the person requires that the political order be justified to each and every subject. But, for each and every subject, reason speaks with one voice: more freedom rather than less.

On this point, I think Kant is more libertarian than Locke. Kant's view can explain why it is wrong to sacrifice liberty for greater welfare, for example. Locke's view allows for greater restrictions on liberty as long as they are, in some sense, Pareto-improvements on a freer baseline. Granted, there are some restrictions on what we can consent to, derived from natural law. But there is much space between the moral baseline and totalitarianism for government to restrict freedom. Kant's view doesn't have that problem because, for him, the moral baseline is identical with the moral ideal: freedom.

Kant's view also begins to allow us to rank liberties. The most vital liberties will be those most closely connected to the development and maintenance of free, autonomous reason. Freedom of speech and conscience will rank very high on such a list.