1. Kant on the public duty to support the poor
In a passage from the Doctrine of Right that is particularly enigmatic even by his own high standards, Kant announces the state’s right to tax in order to fulfill a public duty to support the poor.1 The passage raises fundamental issues about the interpretation of Kant’s legal philosophy, about the connection between private law and public law, and about the conceptual resources available to a system of rights for dealing with poverty. Kant, however, says almost nothing about the basis of this duty. In his Preface to the Doctrine of Right Kant had remarked that he had elaborated the latter sections less thoroughly than the earlier ones, because inferences from the earlier sections could easily be made.2 The sparseness of his treatment of the duty to support the poor exemplifies this less thorough elaboration, but—as is evident from the perplexity to which the passage has given rise—not the ease of inference.
One might suppose that state taxation to support the poor involves a clash between distributive and corrective justice. Whether the state should satisfy the basic needs of its citizens is, of course, a standard issue of distributive justice. This recourse to distributive justice requires the state to use its taxing powers to take something that would otherwise remain within the private resources of those taxed. In a well-ordered state these resources reflect proprietary rights worked out and protected by private law within a conception of corrective justice. Thus, the state’s support of the poor, one might think, accomplishes distributive justice at the expense of citizens’ corrective justice entitlements.
This supposed clash between distributive and corrective justice leads to the temptation to eliminate one form of justice in favor of the other. Contemporary legal and political thinking shows this temptation operating in both directions. Those opposed to the state’s distributive operations claim, in effect, that corrective justice is all the justice that there is.3 On this view, justice is fully satisfied by the private law notions that recognize entitlements to property and personal integrity, allow for the voluntary transfers through contract and gift, and protect rights through the law of contract, torts, and unjust enrichment. These notions themselves are interpreted as embodying a mode of practical reason distinctive to private law in that it works justice between individual parties without reference to any distributive purposes. “Distributive justice” can be regarded merely as a euphemistic term that camouflages the injustice of the state’s treating individuals and their entitlements as means to collective ends. This primacy of corrective justice honors private law entitlements while renouncing the existence of a state obligation to satisfy citizens’ basic needs.
On the other hand, those who favor the state’s distributive role may be tempted to regard the working of distributive justice as normatively fundamental. The doctrines of private law then become nothing more than special operations of distributive justice. On this view, property can then be seen simply as the residue remaining after the state’s distributive activity rather than as a locus of independent normative significance.4 Liability rules also, whether dealing with contracts, torts, or unjust enrichment are regarded as justified to the extent that they embody distributive moves.5 State support for the poor is then merely one distributive operation among many. Abandoned or explained away is the distinctive significance of the private law concepts as the legal manifestations of corrective justice.
Kant’s remarks on the state’s right to tax in order to fulfill a public duty to the poor indicate that he does not share these one-sided views of justice. As a philosopher working within the tradition of natural right—indeed, as perhaps its greatest expositor—Kant gives a detailed non-distributive account of the principal features of private law, especially of property and contract. Developing corrective justice in terms of his own metaphysics of morals, Kant portrays private law as a system of rights whose most general categories give juridical expression to the coexistence of one person’s action with another’s freedom under a universal law. Yet despite his affirmation that private law entitlements, understood non-distributively, are the necessary components of a free society, Kant nonetheless holds that there is a public obligation (and not merely a liberty) to support the poor. He thus seems to regard this aspect of distributive justice as compatible with corrective justice, with the state being duty-bound to actualize both. Neither of the temptations that characterize certain contemporary approaches to law attracts him.
However, the question that arises is whether Kant is entitled to the view about the alleviation of poverty that he professes. Kant’s view of property is at least as extreme as the most extreme of today’s libertarians.6 How on his view can the state function both as the guarantor of purely non-distributive property rights and as the public authority that levies taxes in order to fulfill a public duty to support the poor? This question is all the more serious because Kant is a systematic philosopher for whom obligation signifies necessity, so that the duty to support the poor that he posits must somehow arise out of, and not merely be consistent with, his non-distributive account of rights. Furthermore, for Kant rights are the juridical vindications of freedom that the state coercively protects against infringement; coercion for the benefit of anyone, including the poor, seems inadmissible within the Kantian framework. Kant offers almost nothing resembling an argument in support of the duty he announces. Nor does he explain how this duty is to be integrated into his austere system of rights.
In the crucial passage, appearing in his section on public right in the Doctrine of Right, Kant describes the state’s right to tax in order to fulfill its duty to the poor in these terms:
To the supreme commander there belongs indirectly, that is, insofar as he has taken over the duty of the people, the right to impose taxes on the people for its own preservation, such as taxes to support organizations providing for the poor, foundling homes, and church organizations, usually called charitable or pious institutions.7
Because for Kant a right is always connected to the authorization to use coercion,8 Kant goes on to specify that the state’s support of the poor should be achieved by coercive public taxation and not merely by voluntary contributions. He explains the basis of the right to tax as follows:
The general will of the people has united itself into a society that is to maintain itself perpetually; and for this end it has submitted itself to the internal authority of the state in order to maintain those members of the society who are unable to maintain themselves. For reasons of state the government is therefore authorized to constrain the wealthy to provide the means of sustenance for those who are unable to provide for even their most necessary natural needs. The wealthy have acquired an obligation to the commonwealth, since they owe their existence to an act of submitting to its protection and care, which they need in order to live; on this obligation the state now bases its right to contribute what is theirs to maintaining their fellow citizens.9
No reader of Kant’s legal philosophy can fail to be struck by the apparent oddity of these paragraphs. Kant’s legal philosophy is an elucidation of the concept of Right—that is, of “the sum of conditions under which the choice of one can be united with the choice of another in accordance with a universal law of freedom.”10 In introducing the concept of Right, Kant notes that “it does not signify the relationship of one’s choice to the mere wish (hence also to the mere need) of others, as in actions of beneficence…”11 The consequence of this abstraction from “mere need” is a complex of proprietary, contractual, and domestic rights which place others under correlative duties of non-interference, “for anyone can be free as long as I do not impair his freedom by my external action, even though I am quite indifferent to his freedom.”12 Yet when outlining the rights of government in the quoted paragraphs, Kant introduces—seemingly out of the blue—a positive duty, which government takes over from the people, to support those “unable to provide for even their most necessary natural needs.” As Jeffrie Murphy remarks, “it is very difficult to see what Kant is up to.”13
Kant’s legal philosophy is so parsimonious and its architecture so austere that little leeway is available in dealing with a perplexity of this sort. Kant’s adamantine boundary between right and ethics—the former dealing with externally coercible duties, the latter with uncoercible duties done for their own sake—prevents recourse to appealing ideas found in Kant’s writings on ethics. For example, because Kant does not formulate the duty to support the poor as the reflex of any correlative right that the poor have, one might be tempted to regard that duty as somehow connected to the personal duty, postulated by Kant elsewhere,14 to come to another’s aid. However, the duty to aid is an ethical rather than a juridical one; it therefore cannot be associated with the coercive taxation authorized for support of the poor. Kant’s own description of the concept of Right, with its contrast between rightful actions and actions of beneficence, confirms that state support of the poor does not fall under the duty to aid.15
Some commentators have seen Kant’s requirement of support for the poor as an expression not of benevolence but of political prudence.16 The alleviation of poverty facilitates the state’s survival by promoting the state’s strength and stability against internal disorder and external attack. Kant elsewhere indeed seems to authorize the state to legislate on this basis for the happiness and prosperity of its citizens.17 However, the acknowledged instrumentalism of such legislation18 fits awkwardly into Kant’s exposition in the paragraphs quoted above. In these paragraphs the relief of poverty is viewed not as something from which the state might contingently benefit, but as a duty of the people that the state assumes. Like all duties in Kant, this duty presumably reflects a normative necessity rather than a prudential option.19
In this chapter I want to develop a different possibility.20 My contention is that, far from being inconsistent with the internal logic of Kantian right, the state’s duty to support the poor is the inexorable outcome of that logic. Kant includes support of the poor as an “effect with regard to rights that follows from the nature of a civil union.”21 The civil union results from the transition to public right from the property regime in the state of nature. Kant’s theory of property rights necessitates not only this transition but also—as its consequence—the people’s duty to the poor. Just as for Kant the movement from property in the state of nature to the public right of a civil union is obligatory, so the state’s support of the poor is an obligatory consequence of that movement. Were the state under no such obligation, the legitimacy of the civil union that replaces the state of nature would itself be impugned. On this reading of Kant, the very idea of private property implies the state’s right to tax property owners in order to discharge a public duty to relieve poverty.
Interpreted in this way, Kant’s account casts light on two aspects of corrective justice. The first concerns the place of property within a corrective justice theory of private law. It is easy to assume that property is problematic for corrective justice: because private law presupposes an antecedent distribution of property, corrective justice itself seems to rest on a foundation of distributive justice.22 Kant, however, rejects the assumption that the justification for property lies in an antecedent distribution. For Kant, as the next section of this chapter explains, property arises from the freedom to act in relation to others in accordance with self-chosen purposes. This freedom characterizes the conception of the person—what was termed “personality” in chapter 1—that corrective justice presupposes. Property so conceived completely conforms to corrective justice. In this account property does not arise even notionally through distributive justice—that is, through a determination by a common authority to parcel goods out on the basis of a distributive criterion. To the contrary, common authority itself becomes possible only as a consequence of the rightfulness of property.
The second aspect on which Kant’s account casts light concerns the relationship between corrective and distributive justice. As noted above in chapter 1, these two forms of justice connote categorically different structures of justification. Neither of them can integrate the other within it. Given the legitimacy of both forms of justice, what (aside from the sheer positivity of laws within a single jurisdiction) is the nature of the unity of a legal order within which both are present? Clearly, it cannot be the unity of the same justificatory structure applying to all its legal arrangements. Implicit in the Kantian account as interpreted in this chapter is a different answer: it is unity by appropriate sequence.23 Starting from the underlying conception of personality, Kant traces a series of conceptual steps each of which presupposes but complements the preceding one until the full spectrum of rightful legal arrangements is exhibited. The underlying unity is provided by the idea of what self-determining persons require in order to realize their freedom through law. Under this notion of unity neither corrective justice nor distributive justice trumps the other, nor is either derived from the other. Rather each finds its appropriate place in the conceptual sequence that actualizes the reciprocal freedom of all.
In accordance with this conceptual ordering, property generates the distributive justice that consists in the alleviation of poverty through taxation. Far from being a self-sufficient and free-standing institution of justice, property requires redistribution to the poor for its own legitimacy. Thus Kant transcends the categorical difference between corrective and distributive justice while preserving and elucidating the distinct roles that each plays in a free society. In this chapter I attempt to reconstruct the argument, implicit in his theory of law but not articulated by Kant himself, that underlies this remarkable conclusion.
2. Kant’s account of property
Kant’s account of property in the Doctrine of Right features a conceptual progression that starts from the innate right to freedom and culminates in the establishment of property as an institution of positive law.24 Kant exhibits the phases of this progression as implicit in the relationship of free persons under the conditions of human existence. Because property is consistent with the freedom of all, it is rightly secured and protected by the law’s coercive powers.
This progression has three phases, which Kant presents from a variety of standpoints as befits their structural importance. Sometimes he describes these phases in terms of the categories of modality (the possibility, the actuality, and the necessity of possessing objects).25 Sometimes, he refers to them as divisions of justice (iustitia tutatrix, iustitia commutativa, iustitia distributiva).26 Sometimes he refers to the division of duties that accompanies the divisions of justice.27 Sometimes he refers to these phases in terms of form and matter.28 Sometimes he calls them different variations of right (what is intrinsically right, what is rightful, what is laid down as right)29 or different kinds of laws of justice (lex iusti, lex iuridica, lex iustitiae).30
However the phases are referred to, the progression through them exhibits a dialectical structure of argument.31 In the first phase Kant starts with the universal principle of Right, which mandates the coexistence of one person’s action with another’s freedom under a universal law, and notes the juridical relationship analytically contained within that principle. This juridical relationship does not include property in external things, but it does encompass certain “authorizations” such as equality and non-dependence,32 which are normative attributes implicit within the universal principle of Right and therefore ascribable to the parties at this phase. In the second phase he extends this initial argument on the ground that having something external as one’s own, although not analytically contained in the universal principle of Right marks a connection to external things that matches the capacity for choice characteristic of self-determining action. This extension, however, is problematic, because although ownership of external things is now permissible, it is not yet put into effect under conditions consonant with the authorizations articulated in the first phase. The second phase, accordingly, is merely provisional. The problems it raises are resolved at the third phase, where the conditions of acquisition take a form that is fully consistent with what was analytically contained in the universal principle of Right. As Kant puts it with unfortunate opacity when he lists the threefold division of duties, the duties of the third phase “involve the derivation of the [duties of the second phase] from the principle of the [duties of the first phase] by subsumption.”33
Although presented in a sequence, these three phases are conceptual, not temporal. Kant is not offering a philosophical reconstruction of the historical evolution of property. Rather, the three phases represent aspects that together are constitutive of property in the juridical relationships of free persons (e.g., that external things can be acquired through acts of will, that property does not require actual possession, that property rights are enforceable, and so on), but presented in an ordering that purports to show property’s normative necessity within a system of rights. The three phases comprise an articulated unity: each phase proceeds with its distinct mode of argumentation (the first is analytic, the second is synthetic, the third works by subsumption), but the account of property stands or falls on the totality of the three phases taken together. Kant himself presents property as absent at the first phase and as problematic at the second. If these phases were considered independently, the argument would not get off the ground or would collapse as soon as it did so. Nor does the third phase stand alone either; its role is to incorporate what is necessary to reconcile the second phase to what is analytically contained in the first one. The result is that the institutions of public law that emerge at the third phase determine and guarantee the property entitlements that are the product of the second phase in a way that expresses the normative significance of the principle of right that initiated the first phase.
The first phase features the innate right to freedom. The innate right to freedom consists in the independence of one’s actions from constraint by the actions of another, insofar as such independence is consistent with the freedom of everyone else.34 This right stands in an analytic relationship with the universal principle of Right, which requires that one person’s action be able to coexist with the freedom of everyone under a universal law. Formulating freedom as an innate right adds nothing to what the universal principle already contains; it merely isolates a constituent element of, and represents what is already involved in thinking about, that principle.
The innate right is “the only original right belonging to every man by virtue of his humanity.”35 This right is innate because every person has it simply by virtue of his or her existence. Similarly, it is original because it arises independently of any act that would establish it. Because my innate right is not mine by virtue of some act of acquisition, it is what is internally mine, in contrast to what is externally mine, which must always be acquired.36 What is internally mine is my freedom37—that is, my capacity to act in the execution of the purposes I form as a self-determining being.
For human beings the paradigmatic manifestation of what is internally mine is the body, the physical organism through which the person expresses his or her freedom as a self-determining being.38 By mandating actions that can coexist with the freedom of all, the universal principle of Right signals its application to the actions of self-determining agents. In the case of human beings, self-determining activity takes place through the body. Because the body is an “inseparable unity of members in a person,”39 interference with any part of another’s body is a wrong against that person’s freedom. This right with respect to one’s own body is innate. It arises not through the performance of an act of acquisition (indeed, no such act is conceivable because the body itself is what would have to perform it), but simply by virtue of one’s being born. Thus, the body is the primary locus of what Kant calls the “right of humanity in our own person.”40
The occupation by a person’s body of a particular space is an exercise of this right: “All men are originally (i.e., prior to any act of choice that establishes a right) in a possession of land that is in conformity with right, that is, they have a right to be wherever nature or chance (apart from their will) has placed them.”41 Given the finitude of the earth’s surface, the occupation of space carries with it the possibility of persons coming into contact with one another.42 Such contacts are governed by the universal principle of Right. Because no one can interfere with the body of anyone else, a person who occupies a particular space excludes all other persons from that space.
In this phase, where one’s only right is the innate right of humanity in one’s own person, property as the entitlement to something distinct from the person’s body does not exist. Of course, a person may come into physical possession of some external object. I might (to use Kant’s examples)43 hold an apple or lie on the earth. But someone who wrested the apple away from me or pushed me off the land on which I was lying would be wronging me with respect to my body, not my property. By disturbing the disposition of my fingers as they grasped the apple or of my physical frame as it rested on the earth, the wrongdoer would be acting inconsistently with my innate right to occupy a particular space, rather than infringing a right that I have in the apple or in the resting place as such. The interference would be with what is internally, not externally, mine.
Property goes beyond innate right by treating the person as entitled to an external thing even when it is not in the person’s physical possession. Innate right prohibits another’s interference with an external thing only insofar as such interference would simultaneously be an interference with my body as something internally mine. Property, in contrast, entails treating the thing as externally mine, so that the apple I was holding remains mine even when I set it down, and similarly the land upon which I was lying remains mine even when I have moved elsewhere. Under a property regime anyone who interferes with what is mine wrongs me despite the fact that my body is not immediately affected.
The extension of the scope of rights to include what is externally mine is the second phase of Kant’s account of property. Kant introduces what he calls “the postulate of practical reason with regard to rights,” under which “it is possible to have any external object of my choice as mine.”44