Force and Freedom: Kant's Legal and Political Philosophy (review)

Arthur Ripstein's monograph Force and Freedom arrives at a felicitous moment for Anglo-American political philosophy. Since John Rawls reinvigorated the field forty years ago, the approach of A Theory of Justice (Rawls 1971) has set its agenda. It is of course difficult to overstate how much Rawls has taught us, but many political philosophers have begun to thirst for fresh ideas. In Force and Freedom Ripstein responds by taking us back to Kant. His work goes beyond previous scholarship on Kant's political philosophy, providing a systematic and sympathetic reconstruction of the entire sweep of Kant's argument in The Doctrine of Right, and — most helpfully — bringing this argument into conversation with contemporary political philosophers.

Rawls gave us a theory of distributive justice, and in the wake of his work even critics took the fair distribution of the benefits and burdens of cooperation as the basic problem for political philosophy.¹ Ripstein looks to Kant as a source for a new guiding question, one that is not about distributive shares. Indeed, Ripstein's target is even more general: in his view, the problem with the distributive approach is that it treats the state instrumentally, as a means to accomplish an end that is conceivable apart from it and could in principle be brought about some other way. Ripstein believes that the Kantian alternative exposes and resolves problems common to all such instrumental views.

Ripstein suggests that the first task of the political philosopher is to show how, if at all, the authority of the state can be made compatible with each individual's authority over himself. He puts the question this way in his introduction:

States claim authority — the entitlement to tell people what to do — and coercive power — the right to force them to do as they are told. How can these powers be consistent with each human being's entitlement to be his or her own master? Kant saw two centuries ago that the question is compelling because everyone has a right to be free, and that any adequate answer must itself rest on freedom.

(Ripstein, x-xi)

The answer to which he refers is that the authority of the state is justified by its indispensable role in making it possible for all individuals to be free together. Only the state can create what Kant calls 'a rightful condition,' a situation in which each individual's right to freedom is made fully determinate and reliable. The state is not merely the means most likely to secure such a condition. Rather, 'the consistent exercise of the right to freedom by a plurality of persons cannot be conceived apart from a public legal order' (Ripstein, 9). Thus a system of equal freedom is not an extrinsic goal at which the state aims, but rather its internal constitutive standard.²

My plan for this essay is as follows: I begin by briefly laying out Ripstein's Kantian argument for the authority of the legal institutions that comprise the state. In the second section I look at one of his most innovative uses of this argument, his case that justice requires establishing, regulating and maintaining public roads. The case is interesting in its own right, and also serves as an example of Ripstein's strategy for establishing substantive requirements on the organization of a state. This strategy raises two worries, which I discuss, respectively, in sections III and IV. Section III addresses the concern that Ripstein does not adequately distinguish between standards of legitimacy and standards of ideal justice. Section IV expresses doubts about Ripstein's conception of external freedom and makes a case for an alternative interpretation of this central Kantian notion.

I Exiting the State of Nature

Ripstein takes seriously Kant's ambitious approach to political philosophy. Beginning with just the claim that each person has an innate right to freedom he argues for an obligation to exit the state of nature by founding the state. This...