In light of the extraordinary and inspirational events in North Africa, it’s interesting to reflect on Kant’s political philosophy – especially his rather ambivalent conclusions on constitutional legitimacy and the right to rebel against oppressive regimes.
(I am using Reiss, ed., Kant’s Political Writings)
Kant rejects the right to rebellion on grounds that it is inherently self-contradictory. If the constitution entitled the people to overthrow government, this would divide sovereignty (which is itself indivisible), and start an infinite regress by requiring a “second head of state to protect the rights of the people against the first ruler, and then yet a third to decide which of the other two had right on its side,” and so on (Theory and Practice: 84). Instead, Kant champions an evolutionary legal order whereby improvements to the law are legally and morally permissible by gradual reform through the law. Revolutionary acts of rebellion open the legal order of the commonwealth to the violence of the state of nature.
Against “active” forms of resistance such as rebellion, Kant promotes “passive” resistance in the form of freedom of the pen, with the important caveat that such resistance may “not transcend the bounds of respect and devotion towards the existing constitution” (Theory and Practice: 85). If the head of state routinely transgresses the law, subjects may “lodge complaints about this injustice, but he may not offer resistance” (Metaphysics of Morals: 143). Kant suggests then that there can be cases where a gap exists between positive law and the general will: the government could in fact make a law that takes away the subjects’ freedom in ways against the general will. Suppose a regime does not adequately ensure equality of the law and eliminates all normal means by which citizens may effect political change. Kant insists that the people have no right to rebel and reestablish their freedoms: “[t]he rights of the people have been violated…Nevertheless, it is in the highest degree wrong if the subjects pursue their right in this way” (Perpetual Peace: 126).
Kant puts a great deal of faith in the ability of citizens to communicate their opinions publicly to shape the general will, which in turn ought to influence government and bring about subtle political reform. But faced with the scenario of a corrupt regime, this faith seems misplaced. The solution to state corruption cannot in every case be subsumed under the legal framework of the constitution, for it may be precisely the normal ordering of the state that is the source of the problem. Incremental political and legal change through corrupt institutions cannot be effective. Kant’s deep anxieties concerning a lapse into the state of nature leave him unaware of a crucial aspect of legitimate government: that of maintaining popular support. He quite simply fails to imagine cases in which a duty to sustain effective government may imply that an ineffective or unjust regime be displaced as swiftly as possible. In these circumstances, the long-term viability of the state may best be achieved by supporting acts of rebellion.
Perhaps paradoxically, Kant claims that if a violent revolution does take place, the “unlawfulness of [the new state’s] origin and success cannot free the subjects from the obligation to accommodate themselves…and they cannot refuse to obey in an honest way the authority now in power” (Metaphysics of Morals: 147). This is what is perhaps most troubling about Kant’s position. He does not – indeed cannot – distinguish between a democratic revolution and a reactionary coup d’état because he denounces from the start any kind of normative theory of democratic refounding. Both qualify equally so long as they bring about a legitimate constitution, which can only be established in retrospect. In the end, Kant is left with only two factual criteria that on their own fail to produce the normative and critical resources required for a theory concerned with the democratic foundation of society: (1) the effectiveness of a group to enforce new basic orderings of the state; and (2) the mere fact of people’s conformity to those new orderings. However, mere conformity can be secured by a variety of means, such as force, fear, habit, or free and consensual agreement. Surely each of these methods carries significant normative weight, but Kant does not distinguish between them, thereby depriving us of important normative tools for assessing democratic legitimacy.