As I was doing the reading it seemed to me that the Kantian
framework Ripstein puts forth is, at least in part, dependent on the (hypothetical)
consent of the people. This is a similar argument as Rawls put forth, and I’m
not sure if I’m happy with either of them.
For Kant (or at least the way Ripstein interprets him), the
powers of the state are derived directly and solely from the people. “[T]he
only way the state could have these powers is if they can be regarded as
exercised on behalf of the citizens.” (Ripstein, 243) The powers he is
referring to here are those that allow the state to maintain, preserve and
promote “a system of equal freedom.” He goes on to say: “[T]he only way the
state could have these powers is if they can be regarded as exercised on behalf
of the citizens, and that requirement in turn is understood in terms of the possibility of the citizens
giving such laws to themselves.” (emphasis added) (243)
Especially from the last part, it seems that there is some
element of a reasonable check being imposed here. The government as a whole is necessary
to overcome an enormous collective action problem, but it is still constrained
in what it can do by what its citizens would
have done, had it been possible to do so without the public state.
This seems far too vague and hypothetical to me, especially
because Ripstein is lacking any further exploration of justification of this
idea. Rawls at least goes into great depth in attempting to explains how he fulfils
this requirement, whereas Ripstein simply requires that the be for the benefit
of the people and their private property. I’m not sure if this really matters
in his larger argument, but as a separate point I didn’t fully understand it so
I thought I would bring it up.
Thomas,
ReplyDeleteI disagree with your interpretation of Ripstein's explanation of Kant on page 243, which I believe is what leads you to believe that Ripstein is being vague. When Ripstein says, “[T]he only way the state could have these powers is if they can be regarded as exercised on behalf of the citizens, and that requirement in turn is understood in terms of the possibility of the citizens giving such laws to themselves,” I believe he is continuing to identify where the state draws its powers, not what constrains these powers (243). This quote is consistent with your analysis directly preceding this quote where you say that"the powers of the state are derived directly from the people" (Schalke). In the same way, the citizens could have made their own laws but instead they surrender this power to the public sphere.
If we consider this quote to be an explanation of the powers of the public sphere, then Ripstein becomes less vague. Ripstein does goes on to define Kant's limitations of the public sphere later in his argument when he says, "from Kant's perspective, however, the point of institutions is to act on behalf of the public, that is, the citizens considered as a collective body, providing things that must be provided publicly- a forum for dispute resolution, public codification of law, and public enforcement, as well as the conditions of the publicity of those institutions including public roads" (255). To use your terminology of a "check," I would agree that the state's power in the public sphere is "checked" insofaras the sphere is limited and distinct from the private sphere, but I do not think that this check is merely dependent on what citizens would have done.
(P.S.I am not surprised that you are unhappy with Rawls or Kant- don't you miss Marx? :) )
Interesting comment. Think of the free rider who Kant has in mind as someone who wants private property but does not want to contribute to public roads. If Kant/Ripstein is right, this is an incoherent position. Private property is only legitimate within a system of public roads, hence the free rider must presuppose the conditions for legitimate private property, roads maintained and operated by a legitimate public authority, and must presuppose that these conditions are legitimate, but rightful honor requires reciprocal contribution to such public roads. Thus, such a free rider is illegitimately attempting to use us as means for his own ends, and we can coerce him to cooperate. It is not clear what role consent plays in such an account, hypothetical or otherwise. Private property presupposes public right (e.g. roads), public right presupposes mandatory cooperation, hence private property presupposes mandatory cooperation. If the free rider refuses to cooperate, the state is then justified in coercing him to do so. But has there ever been a question as to whether states coerce? Whether, for example, it can force me not to drive on the left side of the road? Or has the question always been under what circumstances, the state legitimately exercises such coercive authority? Ripstein's answer is, only to secure the conditions of equal individual freedom.
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