The third objection 20 is that in actual practice we are never sure which motive, duty, the desire for happiness, or some other motive or combination of them, actually carried the most weight in determining our action. Duty, it seems, is no clearer guide to action than any other motive, and, for the common man, plays no more important role in his decision making than do other conisderations. Hence, even though Kant’s theory is a guide to action, it is no better than some other theory.
Apart from the insistence that his theory alone is consistent with acting morally, Kant argues that his theory, unlike that which makes happiness the ground of action, provides a reliable guide to action. While his theory informs one immediately of what ought to be done, this, Kant insists, is not true of the opposing one. To decide which action will promote my happiness “always requires a great deal of skill and thought.” “The will thus pursuant to the maxim of happiness,” Kant observes, “vacillates between motivations, wondering what it should resolve upon. For it considers the outcome, and that is most uncertain.” 21 But, Kant claims, if one asks “where his duty lies, … he is instantly certain what he must do.” 22
THEORY AND PRACTICE IN CONSTITUTIONAL LAW
Two questions which have been asked as long as men have lived in civil society are (1) Why is a person obliged to obey the existing government? and (2) Under what circumstances, if any, is one justified in disobeying or in overthrowing the government? These questions were asked in Kant’s lifetime, which was marked by the French and American Revolutions, and they are still being raised today. While it is acknowledged that existing governments can force a person to obey, one can ask whether the obligation to obey reduces to the recognition of superior force. Most of us believe that the obligation rests on more than the recognition of the power of governments. Submitting to superior force may be prudent; it is certainly not an obligation. What confers upon governments the authority which most of us believe they have? And under what conditions, if any, can a government lose its authority? Kant deals with these questions in Part II.23
In answering these above questions, Kant evaluates two influential theories which also provide answers. Each of the rival theories rests upon a conception of human nature, and each provides advice for governing the state. Although Kant rejects both theories, he does not reject everything included in them. In an important sense, his theory is a combination of what he considers the legitimate insights of the two. To understand Kant’s theory, we must briefly characterize each theory and consider Kant’s objections to them. The test Kant uses in evaluating the two is whether they are consistent with the conditions necessary for a stable society and whether they explain why men recognize that they are obliged to obey the government. The theories which Kant evaluates are versions of the Hobbesian and the Lockian theories.
HOBBESIAN THEORY
The Hobbesian explains the origin of civil society and the authority of government in terms of the conception of man as egoistic and anti-social. He explains why men move from the state of nature (a pre-societal condition) into civil society by identifying what causes them to do so. In the state of nature, men are essentially equal; there are no important differences between them. Whatever advantages in strength, intelligence or cunning one has over others is cancelled by advantages others have over him. In addition, since men are selfish and anti-social, they are indifferent to the concerns and interests of others. But to pursue his interests, one must have the power to prevent others from harming him. The consequence of these facts is that misery supremely characterizes the state of nature. Life for everyone is solitary, poor, nasty, brutish and short.
Men move into civil society because reason tells them that peace and tranquility are necessary for pursuing their own interests, and experience shows that this is impossible in the state of nature. It is in the self-interest of men to enter society, and since they are antisocial, this can be accomplished only by submitting to a power capable of ending the state of war. Whenever power is effective, men see the advantage in submitting to it, and the fact that one submits to superior power is interpreted as consent to it. What creates the obligation to obey is submission to the power of government, and what confers upon government its authority is the power to coerce. If a government loses its power, it thereby loses its authority.
For the Hobbesian there can be no circumstances under which one may disobey the government. Any laws which limit the obedience of the subject are never in the true interests of men. Since the absolute power of government is the condition necessary for civil society, there can be no right to disobey or to overthrow the government. There are two reasons men lack these rights. The first is that disobedience is irrational, for if the government falls, men return immediately to the state of nature or that condition which poses the greatest threat to their interests. Disobedience can never make things better; it can only make things worse. The second reason is that nen have no rights. They move into civil society not to protect their rights but to end violence and strife. For this, one gives up his liberty, which, for the Hobbesian, is more a curse than a blessing. The only privileges which men have are those extended by government, and they enjoy them only so long as governments permit.
Kant agrees with the Hobbesian that a condition necessary for civil society is the power of government to coerce individuals, and that there is no right to disobey or overthrow existing governments. And while Kant insists that, at best, we only have hypotheses as to how and why men formed societies, the one he considers most plausible is similar to that advanced by the Hobbesian.24 As Kant puts it, “universal violence and the resulting distress were finally bound to make a people decide that they would submit to the coercion of public laws … and found a state under a civil constitution.” 25
Despite the points of agreement, Kant opposes the Hobbesian theory. Kant rejects its basic assumption that an historical account of why and how men moved into civil society prescribes what the relationship between men and government ought to be. That one had good reasons for submitting to a superior power does not, in itself, establish that one is obliged to obey that power. For Kant, there is an important distinction between a government having the power to coerce and the right to coerce. While he agrees that having the power is necessary for a viable government, he disagrees that it thereby confers upon a government its authority. To claim that it does is to hold that might makes right.
Since Kant believes that every political theory is a guide to action, what advice does it give? It tells statesman and citizen alike that the only thing which men respect is power, and the question whether a government has the right to coerce is whether it has the power to do so. But, Kant observes, “once we are talking not of right but of power only, the people may try their own power and jeopardize every legal constitution.” 26 If might makes right, the only way in which the citizen can determine whether he is obliged to obey is to test the power of government. The theory offers an open invitation to civil disobedience and revolutionary activity. To adopt the theory is to advocate policies the consequences of which would jeopardize or destroy the civil state.
The Hobbesian fails to see that men are more than egoistic and anti-social creatures who forfeit their liberty for the protection of government. They recognize that they have rights, and they are well aware of the difference between the power and the right to coerce. The theory fails to accord with the conditions necessary for a stable civil society and is also unable to explain why men recognize that they are obliged to obey the government.
THE LOCKIAN THEORY
The Lockian conceives of men as both reasonable and as constrained in their relationships with each other by considerations of morality. While each person pursues his own interests, most of us tend to respect the rights and interests of others. The Lockian therefore does not characterize the state of nature as a condition which drives men into civil society. Why, then, did they make the move? Men form civil societies because they find that the enjoyment of their rights in the state of nature is not as satisfactory as it could be. They find that their rights are sometimes threatened by those who are
