that Hume is keen to highlight. What makes this solution work, however, needs to be spelled out more clearly.
Kant draws a clear distinction between the actual origins of the state and the normative foundations according to which its legitimacy is to be understood. In a sense, this distinction was already established by Hobbes in the Leviathan. According to Hobbes, even though “there is scarce a commonwealth in the world whose beginnings can in conscience be justified,” there nevertheless exists no de jure difference between a “commonwealth by institution” and a “commonwealth by acquisition.”20 That is to say, political authority may have been established as well through force and conquest (“acquisition”) as through contract (“institution”) because “the rights and consequences of sovereignty are the same in both.”21 Kant follows Hobbes on this score. “Whether a state began with an actual contract of submission (pactum subjectionis civilis) as a fact, or whether power came first and law arrived only afterward, or even whether they should have followed in this order,” he maintains emphatically, “for a people already subject to civil law these subtle reasonings are altogether pointless.”22 The basic idea is that there is a sharp distinction to be drawn between “origins” and “foundations,” between the way in which a political community happens to be established and the normative principles that it is supposed to rest on. While the former is a “question of fact” regarding historical contingencies which may unfold in all sorts of ways, the latter is a “question of right” regarding principles—and no matter what, the two should not be conflated.
With regards to the “question of right” under consideration, however, Kant substantively disagrees with Hobbes, and takes issue with what we might call the private will model of the social contract theory. That political authority rests on our consent and that we are obliged to abide by it on account of our own will has been the point of contractarian arguments from Hobbes onward. Kant thinks that there is something deeply unsatisfactory in this idea: how can the consent of private individuals, each of whom after all acts on his own particular will, produce a public authority? The issue at stake is not simply a matter of enforcement as Hobbes would want to have us believe when, for example, he famously maintains that “covenants without the sword are but words.”23 For Kant, there is a deeper issue at stake, and it is one of perspective.
The fundamental distinction between private will and public authority is that while the former indicates a partial (or unilateral) point of view, the latter is by definition bound to proceed from an impartial (or omnilateral) one.24 A contractarian theory representing the state as the product of an agreement between private wills is defective as a way of understanding the normative structure of the state because a coalition of partial perspectives, no matter how inclusive and voluntary such coalition might be, does not in itself add up to impartiality. This is precisely why Kant argues—strictly following Rousseau on this point—that public authority could only be based on the united will of “everyone (omnes et singuli) within a people.” A united will of this sort, in its turn, requires each person (singuli) to take the perspective of the whole (omnes) and thereby to adopt an impartial point of view. Thus, in the Kantian framework, the original contract does not so much stand for a hypothetical act of promise making. Rather, it is first and foremost a hypothetical act of perspective taking. It is meant to articulate what everyone would consistently agree to if each of them were to take the standpoint of the whole.
On this view, then, to express it in the language of consent, public authority is legitimate and compatible with freedom not because we give our consent to it whether explicitly or tacitly, but because it is worthy of our consent on account of the impartial perspective from which it is structured.25 Accordingly, constitutional claims of popular sovereignty do not rest on the people themselves. They are anchored in the hypothetical voice of the people, which speaks in terms of generalizable interests alone, thereby setting the rational principle of public law as such. In this way, Kant claims to have countered the aforementioned objections made by Filmer and Hume.
What Is the Problem with Hypothetical Popular Sovereignty?
This hypothetical conception of popular sovereignty has nonetheless become deeply problematic in the contemporary world. To give an overview of the problem, I want to distinguish between three ways in which it comes in for criticism. Let me call them “philosophical,” “deliberative,” and “pluralist” objections, respectively. The philosophical objection has to do with the metaphysical background against which hypothetical arguments are justified. In the Kantian scheme, the impartial perspective from which a “civil constitution” ought to be framed is not something we achieve ourselves in the real world through opinion exchange and political debate, through contestation, deliberation, and persuasion. Rather, it is already there, objectively and universally, set by practical reason alone in an a priori fashion. It is claimed to be accessible to all rational beings in the same way.
This means that the “original contract” designates a criterion of legitimacy which transcends all time and place. In Kant’s telling formulation, it is a “Platonic ideal (respublica noumenon), which is not an empty figment of the imagination, but the eternal norm for all civil constitutions whatsoever.”26 A claim of this sort, however, is of course notoriously resistant to proof like all arguments about “first principles,” “natural law” or “self-evident truths.” Insofar as they appeal to an independent order of verification, which is beyond and above our temporal reality, such arguments are met with profound skepticism today. This is why prominent neo-Kantians such as Rawls and Habermas opt for, in their own ways, a philosophical program of intersubjective validation instead of a metaphysics of practical reason.
Hypothetical accounts of popular sovereignty come in for further criticism from a deliberative point of view. Notice that, for Kant, the legitimacy of public law is not related to what real citizens actually have to say on the subject of their constitution, on the forms and principles of their own political organization. Legitimacy is detached from the deliberative agency of citizens at a fundamental conceptual level, and tied instead to a formal test of consistency: “if it is only possible that a people could agree to it,” Kant writes, “it is a duty to consider the law just, even if the people is at present in such a situation or frame of mind that, if consulted about it, it would probably refuse its consent.”27 While the hypothetical voice of the people, speaking in terms of generalizable interests alone, sets the rational principle of public law as such, the actual voices of the people are stripped of their constituent capacity.
It is important to realize that this problem applies to all models of hypothetical agreement whether or not they rest on metaphysical assumptions. Rawls’s “original position” is a case in point.28 Unlike the Kantian “original contract,” the Rawlsian model does not involve any transcendental grounding. However, it leads to a similar deficit insofar as rational agreement is not the outcome of actual deliberation but a function of the theoretical design of the original position. This is one of the central challenges posed by Habermas in his critical encounter with Rawls. Consider the following remark:
From the perspective of the theory of justice, the act of founding the democratic constitution cannot be repeated under the institutional conditions of an already constituted just society, and the process of realizing the system of basic rights cannot be assured on an ongoing basis. It is not possible for the citizens to experience this process as open and incomplete, as the shifting historical circumstances nonetheless demand. They cannot reignite the radical democratic embers of the original position in the civic life of their society, for from their perspective all of the essential discourses of legitimation have already taken place within the theory; and they find the results of the theory already sedimented in the constitution.29
At a fundamental conceptual level, Habermas’s criticism turns on the meaning of political autonomy. “Citizens are politically autonomous only if they can view themselves as the joint authors of the laws to which they are subject as individual addressees.”30
