THE "LEGAL CIVIL COMMUNITY"
AND THE RESOLUTION OF THIS CONTRADICTION
p For Kant the social process is a fluid (mobile) natural- historical environment within which (and in dependence upon changes marking it) the individual, through conscious decision moves to confirm his personality and personal ties with other humans. In schematizing this process Kant employs two basic categories from the Enlightenment theory of the formation of society: "the natural state" and the "legal civil community”. In his rendering of these two categories Kant stood closest to Hobbes, who most pitilessly and uncompromisingly formulated thf basic task confronting the social thought of the epoch 106 of the Enlightenment—that of deducing social order and social awareness, and correspondingly moral awareness of the agent of this order through the interaction of human individuals driven only by the need for happiness and the instinct of self-preservation. For Hobbes more than for any other Enlightenment figure the "natural individual" is anti-social and immoral (that is to say, to the utmost degree purged of those qualities, which remain only to be deduced and clarified).
p Kant draws to its extreme precisely the theoretical cynicism which we noted in Hobbes’ construction. In the beginning there was the state of an uncompromizing helium omnium contra omnes. The human individual wages this struggle, submitting only to the pleasure principle and to reason as a means of weighing conceivable opportunities and threats. All other qualities ascribed to the "natural individual" in the works of the Enlightenment such as "innate social leanings" or “ ppenheartedness” were decisively eliminated. The individual in the "state of nature" is a "thinking animal" in the litera, unsparing sense of this phrase.
p As an animal the human cannot avoid carrying this bellum omnium contra omnes to the crudest level of antagonism, but as a thinking animal sooner or later he must realize that this antagonism forms a universal threat to individual existence, under which misfortune becomes the rule and happiness and success—the exception. It is precisely this animality (social unsociableness), brought to an intolerable pitch, which forces humans as thinking (reasoning) beings voluntarily to impose limits upon their biological arbitrariness of will and to form a "legal civil community”. The "social state" does not arise from "natural state" spontaneously (through evolution or through a “leap”). It is instituted by humans by means of conscious decision-making in a critical situation. "The legal civil state" emerges because each individual—regardless of the path followed—agrees to the limitation of his arbitrary will and relinquishes the right to carry through this limitation (as well as relinquishing that force at his disposal to be used against the arbitrary will of others) to an arbitration set above all individuals within its jurisdiction. This is in fact the law and the power which administers it, with its various instruments for judgement, investigation, punishment, etc. The obligation of the given instance consists in the employment of all available means to defend the freedom of each within those boundaries which do not intrude upon the personal freedom of all. The powers administering the law must treat human relations as if 107 they were instituted by mutual and voluntary agreement (Kant unlike the Enlightenment figures did not insist that the "social contract" should be interpreted as a literal historical event).
p Kant wrote that "... a society in which freedom under the protection of external laws is combined in the highest degree with insuperable constraint, that is to say, the completely legal civil order, should be the supreme task of nature for the human species...” [107•1
p Why did Kant write "should be”, why did he not speak of it as "representing a natural task placed before the human species and already realized in human society"? There was in fact a reason.
p The powers administering the law are in fact people, and people, as Kant repeatedly emphasized, are a priori neither good, honest, nor just. These qualities may be fostered only within the "legal civil community”. But for this community to take roots and exert an ennobling influence over individuals, there must be an honest administering of the law. However, this in turn requires the existence of people who are by nature just, incorruptible, capable of withstanding any pressure and of breaking the arbitrary will of others. Thus we have the emergence of a vicious circle, the antinomy of the "legal civil community”. Kant wrote the following on this subject: "... man is an animal... and if he, as a reasoning being, openly desires to have laws which would precisely define the boundaries of freedom, then his animal, selfish leanings provoke him, where necessary, to exclude himself [from the law and from norms limiting arbitrary will—E.S.]. He thus stands in need of a master to break his individual will and force him to submit to the universally recognized will which prevents no one from being free. But where can man find such a master? Only within his own midst. But this chosen one is also an animal standing in need of a master. Thus, no matter how he [the individual—E.S.] acts in the given instance, it is impossible to envision how man can create a sovereign figure to administer public justice in an impartial fashion.... The inferior clay which makes up man cannot be molded into a perfect form.” [107•2
p But if just (adequate to the law as such) law enforcing agencies cannot be formed within the framework of the "legal civil community" then this community itself is not, as was 108 assumed by the Enlightenment figures, the antithesis of helium omnium contra omnes. To the contrary it represents this war elevated to a new and higher level of cruelty and refinement, because the law itself as well as the instruments of coercion attached to it are now employed as tools of arbitrary will. In this situation the accessibility of power to humans opens up to the strongest, the most cynical and the most artful tne possibility of turning against the rest not only the individual weapons of the competitive struggle, but the might of the state itself.
p The figures of the Enlightenment reasoned that the transition to the "social state" would simultaneously represent the transition to "moral order”, that is to say, to such an organization of human life in society within which the individual would gradually, by force of adjustment, be transformed into a moral being. Kant emphatically asserted the contrary: the "legal civil community" as a state marked by the unjust application of the law, is a forge of radical evil. Given the condition that arbitrary will has the opportunity of circumventing and applying the law with the aid of those who administer it, the severity of the law as such represents a force sponsoring immorality, and at that a contrived, sociallycontnved immorality.
p In the natural historical process there arises a second critical situation, which must be confronted by the individual through conscious decision. The essence of this situation consists in the following. The "legal civil community" is a contradictory form of human life. On the one hand, there exists a law which guarantees the human commonality and is becoming more and more strict and impersonal. On the other hand, there is no arbiter of justice adequate to the law. Instead we have a magistrate to whom, as a prudent-calculating being, the individual tries to accommodate. He desires to insure himself against the arbitrary will of this magistrate by means of cunning, cajolery, and disguising of individual selfishness. But the further along the road this accommodation born of expediency travels, the more vulnerable in fact the individual becomes, and the more defenseless he is before the law as such, for there exists no way of life providing insurance against the threat of judicial abuse. When the unfortunate dissembler falls into the clutches of justice, the magistrate receives the opportunity in this instance of being just, of dealing with him justly.
p For the prudent-calculating consciousness the contradiction offers no solution. It is a dead end leading to despair. But for the reason (that is to say, for the human facility for recognizing 109 what are in fact unresolvable tasks for what they are) this contradiction signifies a situation requiring an internal restructuring, a fundamental reordering of personal priorities. As a reasoning being the individual rejects the nope for the reasoned attainment of success, and instead concerns himself with the preservation of his individual dignity, which given the circumstances, is the only justifiable recourse.
p The individual now sees his mission in appearing before the magistrate not as one standing in fear before an anticipated random social verdict, but as a free personality who has already voiced one’s own verdict, but a just verdict corresponding to the very spirit of the law and to it alone. Thus arises the paradoxical, yet internally incontestable individual position—that of respect for the law as such. If the individual being a typical member of the "legal civil community" employs every available means (persuasion, complaint, reference to the frailty and general imperfection of numan nature) in an attempt to convince the judge of his innocence, the free personality, to the contrary, acts resolutely against judicial malpractice specifically through this admission of personal guilt before the law. He is in agreement (and perhaps even wishes) with the imposition of a penalty which was in actuality deserved.
p In this internal affirmation of the right to a just ruling and of the possibility of a just court of law lies the substance of the Kantian notion of "free morality" or "the moral way of thought”. The position of the moral subject represents for the individual as such the bringing to bear of a solution to the basic antinomy of the "legal civil community": in the moral individual the social norms which he applies only to himself exist in unity with their just observer of the law.
p Kant contrasts the moral individual (personality) not with the arbitrary judgement of the natural individual (in the state of nature) but precisely with the social individual subjected to fear of public exposure and nevertheless tempted to violate the very spirit of the law. The social individual feels himself to be free only so long as circumstances permit him to be unaccountable for his actions. The setting giving shape to the moral individual (personality) is quite the opposite. Kant considered the basic definition of the free personality to be located precisely in his responsibility, that is, in the awareness of his unconditional subjection to the law. Only on this basis does the personality receive the internal right to reject the unjust court of law, in opposition to which he institutes an internal, rigorous and severe, but nonetheless just court. This court is the 110 conscience, the internal defence mechanism against external illegality cloaked by the law.
p The entirety of the paradox contained within the Kantian idea may be expressed in the following form: personal freedom is possible only through radical submission to the law. It was precisely this submission that for the first time and exhaustively excluded for the individual any possibility of social obedience expressed through servility, toadyism or flattery before the arm of the law—before the powers that be. The refined legal consciousness makes the “sovereign”—needed by man as the "thinking animal"—both superfluous and insulting. The "internal conversion to obedience of the law" makes possible a final parting with the slave consciousness.
p To oe a radical law-obedient subject signifies respect for the law not in the accidental expression which it finds in the articles of various statutes and codes but in the spirit of its fundamental declarations.
p The latter (composing the “impractical” part of the law and regarded as an abstraction by those who administer it) speak directly to the legal interpretation of society, its members and the relations among them. This interpretation is given expression in a series of formulations which maintain a close semantic resemblance and are included either explicitly or implicitly; the definition of society as a voluntary association of humans, the charter for which is based on civil regulations; the recognition of the legal capacity of each individual as a mandatory condition for the administration of the law; the obligation of protecting only those relations between individuals under which no human may be utilized as the means for the achievements of ends determined by another, etc.
p As distinct from the practical individual, who never takes such assertions seriously, the moral individual turns them precisely into the basic postulates both of his way of thought and his actions. The maxim of the preservation of human dignity (never treat another human as a means for your own purposes, but only as a goal in itself), which is implied by any code of laws here acquires decisive meaning.
p The radically obedient subject of the law affirms by his behaviour the human community as it defines and must define itself and rejects the alternative definitions rejected by society itself. The moral individual does not contest the validity of these reasons and does not level accusations against society for a disparity between the word and the deed (he, in fact, does not at all concern himself with condemnations of society or with the elaboration of critical programmes concerned with the 111 reconstruction of society). He simply takes the matter at hand, individual practical situations, and carries out those declarations upon which society has reneged. Acting in this manner, the radical subject of the law inevitably comes into conflict with the existing legislation as it is enforced. In so doing he compels the person of the magistrate to oppose the spirit of the law as actuated. Making no attempts whatsoever to subject himself to legal prosecution, he nevertheless forces society to embark on such proceedings sooner or later, proceedings which cannot be justly won. This in turn forces the magistrate to divest himself of the mask of legality.
p The act of the moral individual is not an activity which is first subjected to the law only as it encounters legal proceedings. It is in fact brought within the realm of the law in the act of completion itself, the Kantian categorical imperative states: "Act so that the maxim of thy will can always at the same time hold good as a principle of universal legislation.” [111•1 Proceedings against the moral individual inevitably become, by the logic of events, proceedings against the "universal legislation" to which .is counterposed existing legislation of a transient nature, muddied in the waters of historical expediency and in the interminable mutual accommodations of private interests.
p The stark contrast for Kant between the “moral” and “external” (statutory) law must not be confused with the often discussed distinction between morality and law. The Kantian "moral law" has no connection with morality as the concrete totality of norms and sanctions regulating ordinary human relationships. This law represents, no matter how strange it may seem at first glance, precisely the internally ingested foundations of the law as such. The Kantian moral subject takes a direct stance not against human perversity and depravity, as would the ordinary moralist, but against lawlessness masquerading as legality, against violations of the law posing as the just administration of the law. He is not the advocate of a "strict morality" but an unflinchingly severe defender of those relations based upon mutual recognition of personal dignity (or, ideal legal relations). The struggle against human degradation and the decline of morals is possible only, according to Kant, on these grounds. "Harmful leanings" can fade away only to the extent that respect toward the law is 112 fostered, as are the awareness of duty, obligation and personal dignity.
p Kant accepted as a pure moral act only that activity the motives for which were not an inclination hut a duty. Many interpreters of Kantian philosophy have spoken of the “severity”, “rigorousness” of this proposition. In reality it is directed precisely against the excessive claims and demands which people set for themselves.
p It is commonly thought that to carry out a good deed a person must have a good heart, to wit, he must eliminate all unrighteous inclinations and tendencies within himself. The pure moral act is recognized therefore as that action, and that alone, which is motivated by a noble sentiment.
p This version of moral behaviour may be encountered in the works of many Christian thinkers. If, for example, one gives to the needy only because he considers such a deed to be just, then he, in the opinion of the ordinary religious moralist, is by no means completing a moral act. This moralist is prepared to recognize as a moral “dole” only that act which is accompanied by a feeling of love for the needy (love understood by no means in a figurative sense). In turn, each good deed by the individual must be accompanied by this "evocation of feeling" for this act to be qualified as a good one. Such a practice of uninterrupted moral mockery of one’s own sensibility, it is clear, is beyond the reach of each and every one of us. It is impossible to force oneself not to wish that which one wishes, or not to feel that which one in fact feels; it is not only impossible, but also unnecessary.
p Kant considered that it was fully sufficient not to permit the inclination to turn into the action, if this deed would contradict one’s awareness of one’s duty. This was all that he demanded. No one surpassed Kant in resoluteness in the act of removing from the feelings and inclinations the chains hung on them by moralists and hypocrites and no one acceded quite so graciously the imperfections of human nature. The individual can be a moral creature even in the presence of the most baneful inclinations and predispositions if the stipulation is met that, recognizing the incongruity of the moral way of thinking with his predispositions, he does not give the latter nourishment in the realm of conscious deed and, in so denying them, offers them the opportunity of dying away on their own account.
p Kant took a firm stance against the confusion of the ideal of moral behaviour with the ideal of “holiness” (the dream of elevating our own nature and sensibilities to a state of moral 113 perfection). The importance of this question for Kant may be measured by the fact that he, a deeply religious thinker, dared to offer a forthright criticism of the Gospel commandment to "love thy neighbour”. The "affection towards men ... cannot be commanded, for it is not in the power of any man to love anyone at command....” Love cannot be decreed, even if it is given the quite figurative interpretation of practical love (“to love one’s neighbour means to like to practise all duties toward him”), for "a command to like to do a thing is in itself contradictory". [113•1 To complete this discussion Kant says: "...and this proper moral condition in which he can always be is virtue, that is, moral disposition militant, and not holiness in the fancied possession of a perfect purity of the disposition of the will.” [113•2
p An evaluation of an individual, to be just, must be applied only to the result of this struggle, only to that aspect of the individual internal world which was carried into the actual deed. Those making the moral verdict are not concerned with other factors.
p In its evaluations (and self-evaluation) the Kantian moral subject is the ideal student of law, who judges the individual only through his “deeds” (although, of course, these deeds are not understood in a behaviorial sense, not as a physical event in the physical world, but as completed designs). He neither tolerates nor accepts (if rendered by another party) judgements concerning the "moral constitution”, mat is to say, concerning perversity as a whole or potential moral untrustworthmess, etc. For the righteous judge (and by implication, for the judge of one’s own conscience) the unfulfilled internal world of the individual is his "private affair”.
p This psychological tolerance, stemming from the position of juridical impartiality, allows the moral individual to above all "tidy up one’s own ship”, that is to say, to free oneself of fear of "immoral inclinations" and of pathological inner suspicions as well as preventive self-flagellation. In addition this psychological tolerance opens up the path to unprejudiced relations with other humans.
p The Kantian moral subject is imbued with the deep conviction .that the moral action is within the reach of any 114 individual regardless of his inclinations. Consequently no prior knowledge of the “nature” of the individual can serve as the basis for prophesying the range of his possible actions. The division of humans into those “worthy” and “unworthy” of trust in essence is an operation of the reason falling outside its proper limits, A knowledgeable decision in the given instance is impossible, we may speak only of a practical postulate (or formulation of one’s duty) which could be expressed as follows: trust must be granted to each and everyone. [114•1
p It is not difficult to arrive at the conclusion that this postulate is simply a juridical "presumption of innocence”, transposed to the sphere of personal relations.
p The above maxim has nothing in common with the assertion that everyone can be trusted. The substance of the moral readiness to grant trust rests precisely on the fact that it does not ask for guarantees and exists despite empirical knowledge of the frequency with which the trusting person is in actuality deceived. To the extent that the existing moral and psychological constitution, whether noble or debased, does not determine an action through consciousness and free choice, to that extent there can be no irrefutable knowledge of the future actions of the individual to whom trust has been extended. Every act of trust is a risk.
p For the member of the "legal civil community" and for the moral individual an act of trust differs in meaning (and correspondingly their understanding of the risk involved in trust also differs). The first subscribes wholly to a utilitarian view of mutual human relations and regards each individual as a means for achieving his ends. In trusting another person he simply extends credit, and the worth of another is understood as a condition of the return of a loan. [114•2
p For the moral individual trust has the significance of an appeal to the very worth of the other party, and the “loan” which he risks, bears testimony to the seriousness and honesty of this appeal. The moral individual can lose that with which he took a risk, but not that for which he took the step: there is no 115 act of trust which could avoid altogether exerting an influence upon the moral state of the individual to whom the trust was extended. Quite often this "investiture with trust" evokes true character in the individual for the first time, fractures the cruellest inner cynicism and the most persistent awareness of personal insignificance as well as innate "moral inferiority”. When this occurs, the moral consciousness (even if its bearer makes no attempt to recruit like-minded people) puts individual loneliness to rest, and this iSjin fact the bearer’s only need. Through the act of trust he arouses in other people a faith in the law and brings into being authentic relationships, based upon a mutual recognition of dignity.
p Within the confines of the "legal civil community" arises a commonality of humans, whose relations are structured on corresponding but unrealized principles. This commonality has no definition in a sociological sense and in no way resembles an “organization” or "social organism”. Nevertheless it represents a true human unity.
p This "legal civil community" now acquires the meaning of a natural historical environment, within which there exists an "invisible moral community”, and modifications of the given environment are evaluated from the point of view of the needs ensuring simple preservation of this "moral community”. The moral individual acknowledges membership in the existing community, but only in that sense, in which the social individual acknowledges his affiliation with nature. Internally he includes himself within the community which stands under the moral law.
Treason against this community, against those who trusted, trust, or are willing to trust is for the moral individual a far more abominable offence than is the violation of the requirements posed by social and historical expediency, custom or existing legislation (horror before treachery, before selfbanishment from the "moral community" may in general be regarded as the psychological analogue of the awareness of duty). If the individual faces the alternative: the norms of the moral community or the interests of society, he will choose the first. Society as such (a social whole, with its requirements and objective tendencies) does not represent for the Kantian moral subject something inwardly meaningful, worthy of compassion, effort or protracted investigation.
Notes
[107•1] Immanuel Kant, Sdmtliche Werke in 6 Ba’nden. Erster Band, Leipzig, MD CCCCXXI. S. 229.
[107•2] Ibid., S. 230.
[111•1] Immanuel Kant, The Critique of Practical Reason and Other Ethical Treatises, Chicago, 1952, p. 302.
[113•1] Immanuel Kant, The Critique of Practical Reason, Encyclopaedia Britannica, 1952, p. 326.
[113•2] Ibid., p. 327.
[114•1] The formula "trust must be granted to each and everyone" is not to be found in Kant’s works, but it may be logically deduced from the body of his judgements (in particular, from the maxim concerning the preservation of human dignity, for trust is the recognition of the dignity of the second party). Therefore in the following discussion we will regard the given formula as Kantian.
[114•2] Karl Marx, Okonomisch-philosophische Manuskripte, Leipzig, 1968, S. 259-62.