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Toward a more perfect liberalism: perfectionism in Kantian political philosophy

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Content Toward a more perfect liberalism:
Perfectionism in Kantian political philosophy
By
Paul Garofalo
A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(PHILOSOPHY)
August 2024
Copyright 2024 Paul Garofalo

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Dedication
Dedicated to some bears and flowers.

iii
Acknowledgements
I find myself wholly incapable of properly expressing the deserved praise that all of those in my
life who have helped me achieve this should receive, and so will confine myself to a simpler style
of acknowledgements. I would like to thank my teachers and friends starting from Newtown High
School, especially Lawrence Saladin and Jacob Thomas, and Williams College, especially Melissa
Barry, Bojana Mladenovic, Julie Pedroni, and Jana Sawicki. I would like to thank the many other
graduate students who I have had an opportunity to get to know at USC and who have enriched
my time here. This includes the many who came before me and helped me to find my place at
USC, and many who came after me, whose interactions I value greatly. In particular, I would like
to thank those in my cohort that made my time at USC memorable and helped me develop as a
philosopher—Sean Donahue, Frank Hong, Junhyo Lee, Elenore Neufeld, and Daniel Pallies—and
those who participated in the Ethics/Politics Group and reading groups I helped organize during
my time here. I would also like to thank all the professors at USC whose classes I was able to take
or sit in on who have been so helpful in expanding my philosophical horizons, including James
van Cleve, Zlatan Damjanovic, John Dreher, Stephen Finlay, John Hawthorne, Robin Jeshion, Zoe
Johnson King, Greg Keating, Shieva Kleinschmidt, Sharon Lloyd, Ed McCann, Jonathan Quong,
Jeff Russell, Mark Schroeder, Scott Soames, Collis Tahzib, and Gary Watson, and the support staff
at USC throughout my time here for all the help they have provided in getting me, and the other
graduate students, through the program, especially Natalie Schaad.
I would like to especially thank all those on my dissertation committee who have been so
helpful in the development of this work—my co-chairs, Sharon Lloyd and Jonathan Quong, Mark
Schroeder, Ralph Wedgwood, and my external member, Felipe Jimenez. To begin, thank you very
much Felipe for being willing to take on the task of reading and thinking about my dissertation on

iv
such short notice. Thank you as well to Mark for his constancy in meeting and providing helpful
feedback, especially for the outline and framing of the dissertation and individual chapters, as well
as the various enriching experiences I was able to have through him in the Conceptual Foundations
of Conflict Project and his various classes. Thank you to Ralph for his contributions to some of
the foundational thought of this dissertation through our discussions, as well as his helpful critical
comments on the dissertation.
And to Jon and Sharon, I cannot thank you both enough for your guidance and support
throughout my time at USC. I am privileged to have had the opportunity to work with Sharon both
on this dissertation and on developing my ideas on Hobbes. Though this dissertation is not
explicitly Hobbesian, it is inspired by Hobbes’s thought, and Sharon’s interpretation of Hobbes.
Her careful work in helping to strengthen both the ideas and writing of the dissertation has vastly
improved its coherence and readability, and has minimized repetitive ticks that plague my writing,
though no doubt many remain. Finally, I cannot say enough about Jon’s support throughout my
time at USC and in writing this dissertation. The inspiration for much of the dissertation comes
from taking classes with Jon on the relationship between justice and legitimacy. Many of the ideas
in the dissertation were worked out through repeated meetings with Jon as I stumbled around trying
to figure out what I was trying to say, and Jon helping to develop it into a more workable set of
ideas. His care and guidance were central to the development of the ideas here, and without him I
fear that this dissertation would be even more abstract and bereft of examples than it already is.
While the influence of many people could be noted for this dissertation project, I would
like to thank in particular the following who helped, directly or indirectly, in developing the ideas
here, including Emil Andersson, Michael Ashfield, Simon Blessenohl, Anja Chivukula, David
Clark, Stephanie van Fossen, Jennifer Foster, Jasmine Gunkle, Rafeeq Hasan, Gregory Keating,

v
Rachel Keith, Anthony Nguyen, Laura Nicoara, Christa Peterson, Imge Oranli, Laura Siscoe,
Andrew Stewart, Collis Tahzib, Douglas Wadle, Gary Watson, Matthew Wiseman, audiences at
the 2023 Eastern APA, 2023 Pacific APA, 2022 University of Iowa Graduate Student Conference,
USC Spec Society, the USC Ethics/Politics Group, and anonymous referees and editors for Ethics,
Journal of Political Philosophy, Journal of Moral Philosophy, Philosophical Studies, and Law and
Philosophy for their helpful comments on versions of some of the material presented here. In
particular, I would like to thank an anonymous referee from Ethics for their suggestion to split up
my paper, which turned into what is now Chapters [3] and [5]. My apologies to anyone who I may
have missed.
Finally, I would like to thank my mom and dad, Gregg and Suzanne Garofalo, my brother,
Nicholas Garofalo, and my partner, Quyen Pham for their support and care throughout my time at
USC. The process of getting a PhD can be difficult at times, and often it will seem that all of one’s
effort may come to naught. At these times, it is important to have those around you who care about
you and support you as you struggle.

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Table of contents
Dedication....................................................................................................................................... ii
Acknowledgements........................................................................................................................iii
Abstract......................................................................................................................................... vii
Introduction..................................................................................................................................... 1
Chapter 1: Kantian Foundations: Equal freedom and domination ............................................... 12
Chapter 2: A Kantian justification of the state .............................................................................. 47
Chapter 3: A puzzle for Kantians: Indeterminacy and official discretion..................................... 85
Chapter 4: A path not taken: A perfectionist constraint ...............................................................114
Chapter 5: Perfectionism in the Kantian state............................................................................. 158
References................................................................................................................................... 188

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Abstract
Contemporary Kantian political philosophy generally holds that the legitimate scope of the state’s
authority is to secure the conditions for people’s equal freedom—their right to pursue their own
conception of flourishing consistent with the equal right of others to pursue theirs. A problem
raised for this conception of political authority is that the right to equal freedom is too
indeterminate—there are many different ways that the state can realize equal freedom, and so equal
freedom is unable to guide political conduct. In this dissertation I explore different ways of
addressing this indeterminacy and propose a solution—that officials may appeal to their broader
moral views, including views about human flourishing, to form more determinate interpretations
of equal freedom. This highlights how certain anti-perfectionist foundations for the state can be
made compatible with the state still being sensitive to the kinds of considerations that perfectionists
are interested in.

1
Introduction
A central question in political philosophy is what justifies the state’s legitimate authority.
That is, when states are legitimate it is commonly taken that they have authority over their citizens.
They are able to issue and enforce laws and policies, they have a right against citizens interfering
with the enforcement or carrying out of these laws and policies, and citizens are typically taken to
have an obligation to comply with the laws and policies of the state. Furthermore, the state is
typically taken to have this authority independently of whether the citizens consent to it, that is,
the state’s authority does not rely on the voluntary submission of citizens to the state’s authority.
This seems to create a problem. For if we hold, as many liberal political theorists do, that humans
are by nature free beings, and so by nature not subject to any authority, then how the state can have
such authority seems mysterious. Furthermore, it is mysterious why the state alone has this
authority, as opposed to, say, any charitable or other private organization that does good work in
the world. What is it that makes the state so special?
In contemporary political philosophy there are a few approaches to answering this question.
Here I will explore one answer inspired by Kant’s political philosophy: That the state has legitimate
authority over its citizens because it is necessary to establish people’s rights to equal freedom.1
That is, the Kantian explanation of state authority takes the fact that people are by nature free
beings its starting premise and holds that to truly be free beings, people must exist within a state.
For people’s status as free beings requires that there are rights, but there are many different ways
that these rights could be structured. There is, then, no natural set of rights picked out for people.
1 As I will discuss in Chapter [1], I focus on the conception of Kantian political philosophy developed by Arthur
Ripstein (Force and Freedom: Kant’s Legal and Political Philosophy. Harvard University Press. 2009).

2
The only way to establish a system of rights consistent with people’s right to equal freedom is to
institute them through a state.
While the Kantian approach to explaining the legitimate authority of the state is a powerful
and compelling answer to why the state has the authority it does, it is subject to a significant
problem: The fundamental normative structure of the theory—people’s right to equal freedom—is
too indeterminate to be a usable political concept. This problem is raised in Chapter [1] of the
dissertation where I outline in detail the nature of people’s right to equal freedom. There I argue
that the right to equal freedom requires only that each person has a sufficient amount of rights—
enforceable claims against others that distribute negative liberty between persons—so as to avoid
being dominated by other private persons. The problem, then, is that there are many different,
incompatible ways that the state can secure a sufficient amount of rights for people. How, then, is
the idea of people’s right to equal freedom supposed to function as a fundamental normative
political concept? It seems necessary that other normative concepts can be used to avoid the
indeterminacy, but then it seems that people’s right to equal freedom is no longer the fundamental
normative concept for the state, but simply one of many.
I explore this problem throughout the rest of the dissertation. In Chapter [2] I outline the
Kantian justification of the state in terms of people’s right to equal freedom as explained before:
That people’s nature as free beings requires that there are rights, but it is only within the state that
these rights can be secured. Chapter [3] then explores one potential avenue for Kantians to address
the problem of indeterminacy through relying on government officials to make more determinate
judgments in the application of the right to equal freedom in carrying out their duties. I argue here
that there is a prima facie problem with Kantian explanations: Given that the right to equal freedom
is fundamentally indeterminate, it seems necessary that the state must be able to appeal to some

3
considerations besides the right to equal freedom. But it cannot be that the state can appeal to
whatever considerations—officials cannot appeal to corrupt considerations or considerations that
deny the freedom of the citizens. Current Kantian accounts, though, seem unable to explain what
considerations may or may not be included in the decision-making of the state, and so they
currently lack the resources to address the indeterminacy of the state through this method.
Chapter [4] then explores the possibility of avoiding the indeterminacy by attempting to
include perfectionist normative concepts among the fundamental normative concepts for the state,
but with granting absolute priority to the right to equal freedom. This would make it a condition
on legitimate state action that it act in accordance with some set of perfectionist ideals. I argue that
while this solution can both deliver greater determinacy in judgments and avoids common Kantian
objections to perfectionist state action, ultimately having the right to equal freedom as the
fundamental normative concept is incompatible with there being any other fundamental normative
political concepts, including perfectionist ones.
Chapter [5] then proposes a solution: That officials can use their broader moral views to
form a more determinate interpretation of the right to equal freedom. Like the proposal in Chapter
[4], this holds that officials can use other normative ideals in guiding their actions. Unlike the
proposal in Chapter [4], these normative ideals are not fundamental—they do not impose
constraints on legitimate state action. Rather, they are simply the expressions of the particular
officials and their best attempt to make sense of the right to equal freedom within their own larger
moral frameworks. This means that while the officials act on the basis of these broader moral
views, they are in no way foundational to the state. This avoids the incompatibility found in
Chapter [4] between including perfectionist moral considerations among the fundamental

4
normative concepts of the state—the problem is with including them among the fundamental
normative concepts, and not their use in general.
The result is a form of politics in which a variety of different considerations may be used
by officials and citizens with differing points of views. Millians can use the value of individuality
to support the decriminalization of drugs, feminists can use comprehensive ideals about gender
roles and gender equality to support access to abortion services, and Catholics can use ideals about
the value of spirituality to support public funding of private sectarian education. This allows for a
diverse, but constrained, political arena—different worldviews can engage with one another while
sharing the same goal of securing people’s right to equal freedom. The different views, then, can
be seen as working together to figure out the same goal and are opposed simply in terms of thinking
about how to best understand what that goal is and how to achieve it.
I believe this is an interesting conclusion in itself insofar as it resolves a standing worry
that many have for the Kantian project—that the indeterminacy which Kantians champion as a
feature of their view undermines its capacity to function as a political theory. My interest in this
project, though, does not come from a commitment to the Kantian project and a particular interest
in resolving problems that beset it. Rather my interest emerges from a more general concern in the
kind of views that the Kantian project represents and a more general problem in political
philosophy.
The more general view that the Kantian project represents is what might be called antiperfectionism. Anti-perfectionism, as I understand it here, is the position that the state lacks the
authority to legitimately act on the basis of considerations about flourishing. These views, in
general, are motivated on the basis of a common kind of assumption: That people have a right to
live their own life, consistent with a similar right of others to live theirs. I will call this people’s

5
right to live their own life. I take this right to be representative of a variety of different kinds of
thoughts in liberal political philosophy: the idea of persons as “sovereign” over their selves, the
idea of people as “self-owners” or “self-legislators,” the idea of people as free and equal, the idea
of people as mutually independent, the idea of people as having their own separate existence from
others, and so forth.
A common assumption that arises from these views, sometimes more strongly, sometimes
less so, is that the right to live one’s own life is incompatible with government action done for
certain kinds of reasons—reasons concerning what will lead citizens to flourish or lead good lives.
The state, that is, is not supposed to try to help people to lead particular kinds of lives. That is left
to the people to decide—it is their own life, and so the state, appropriately, should stay out of it.
This is why the views are anti-perfectionist. Most Kantians hold their own views to be antiperfectionist in this kind of way. The state’s goal, for the Kantians, is to secure people’s right to
equal freedom and so provide them with the conditions necessary to pursue their own ends. The
state is not to undertake action simply to try to promote the citizens to flourishing in particular
kinds of ways.
Part of the motivation for this dissertation is to challenge the assumption within the antiperfectionist position that the right to live one’s own life is so inconsistent with the state acting on
the basis of particular conceptions of flourishing. It is, in this sense, a proof of concept—it shows
how one might make the anti-perfectionist thought compatible with perfectionist state action. The
basic ingredients involved in this are simply (i) identifying a domain over which there is some
discretion—in this dissertation it is a matter of indeterminacy, but there are other possibilities such
as incommensurability, inconclusivity, or reasonable disagreement—and (ii) identifying how
perfectionist considerations can be used to make choices within that domain of discretion. This

6
may be, as I articulate in Chapter [5], discretion over the interpretation of the right to live one’s
own life or it could be, as I suggest in my paper “Legitimacy and two roles for flourishing in
politics,” discretion simply to select between different permissible laws and policies.2 And the way
in which perfectionist considerations may be used will depend on the details of what we think there
is discretion over and the precise way of articulating the right to live one’s own life.
The result is that anti-perfectionist conceptions of the state—thinking of the justification
and legitimacy of the state in terms of the right to live one’s own life—are rendered compatible
with the state being sensitive to various kinds of perfectionist conceptions of flourishing.3 This
dissertation helps to reveal this possibility by taking one of the more thoroughgoing antiperfectionist conceptions of the state—the Kantian conception—and showing how even for this
conception, there is still room for state sensitivity to perfectionist considerations. The precise
results for anti-perfectionist theorizing are left open. Anti-perfectionists might respond (as I would)
by accepting this result and evaluating the costs and benefits that come with the state acting on
various perfectionist conceptions. Alternatively, anti-perfectionists might respond by trying to
figure out how to avoid the possibility of discretion—avoid (i)—or to avoid the possibility of
conceptions of flourishing being usable categories—avoid (ii).
2 Garofalo, “Legitimacy and two roles for flourishing.” Journal of Political Philosophy. Vol. 31. No. 3. 2023. 294-
314.
3 This sense of “anti-perfectionism” follows Japa Pallikkathayil’s discussion of perfectionism, wherein the justification
of state authority relying on a conception of flourishing counts as “perfectionist” (“Neither Perfectionism nor Political
Liberalism.” Philosophy & Public Affairs. Vol. 33. No. 3. 2016. pp. 171-196: 188-189). This contrasts with
understanding perfectionism and anti-perfectionism as strictly matters of what considerations the state may take into
account, as is done by Jonathan Quong (Liberalism without Perfection. Oxford University Press. 2011: ch. 1). On
Quong’s view what I am defending here is the compatibility of a political conception of the state with a perfectionist
conception of the state—political perfectionism. I think this is appropriate, but I believe that such a description would
obscure a relevant fact, namely, concerning whether the conception of the state relies on some conception of
flourishing (i.e. is perfectionist) or does not (i.e. is non-perfectionist).

7
I noted before that I am interested in this project not just because of what the Kantian view
represents, but also how it addresses a general problem in political philosophy. The problem is
this: People disagree with one another about what the state ought to do. Yet the state must make
some decision on the matter. Further, this decision cannot come about simply when we have
succeeded in getting everyone to agree with one another—we cannot wait indefinitely for
unanimity. Some people, then, will lose-out. Their preferred policies will not be put into place and
they will not be convinced that they are wrong. And yet, it is necessary for these citizens to see the
decision of the state as still legitimate—that they have a duty to comply with its laws and policies
and that it has a right against their interfering with it carrying out its laws and policies. For
otherwise every decision the state makes would threaten the stability of the state. Therein lies the
problem: How can we give an account of the legitimacy of the state that is able to explain how
there can be vehement disagreement between the citizens about what the state ought to do while
the citizens can recognize the decisions that result as still legitimate through this disagreement?
I take this as a central problem for political philosophy. The difficulty comes about because
when philosophers attempt to justify the state and demarcate their conception of legitimacy, they
often appeal to what is known as comprehensive doctrines—relatively complete ideals about
morality that prescribe an ordering of values. The appeal to such doctrines is not a problem within
political societies where there is relative agreement about morality. In those cases, disagreement
will turn out to be a matter of, largely, factual errors or, at least, errors that citizens will, if made
aware of them, be able to recognize as errors and correct themselves in response. In cases of
disagreement not just about factual matters, but also about moral matters, the appeal to such
comprehensive doctrines is deeply problematic. This is because conceiving of legitimacy as
dependent on being right in this comprehensive way makes it so that all cases of disagreement are

8
cases where the legitimacy of the state is put into question—if the other side is in error, it is
something that seems to make the state illegitimate.
To avoid putting the legitimacy of the state into question, then, we need an account of why
policies that we disagree with are legitimate. One popular account in political philosophy is
political liberalism. Political liberals hold that citizens can reasonably disagree with one another
and that, as a consequence of this reasonable disagreement, it is necessary to ground the
fundamental normative political concepts—the justification of the state and state legitimacy—in
terms that are not subject to reasonable disagreement. Political liberals imagine that there can be
an overlapping consensus of reasonable views that converge on certain liberal values—freedom,
equality, fairness, and so forth—and that so long as policies can be justified on the basis of these
values they are correspondingly legitimate. But there are a variety of ways that these different
values can be interpreted, and so there can be disagreement between people concerning the best
way to interpret those values and what is ultimately supported by them. This is one way to attempt
to explain cases of political disagreement: The disagreement is about how to best go about
satisfying a set of shared values.
This position is quite similar to the one outlined in the dissertation. I also think that the best
explanation for how we can explain cases of legitimate political disagreement is through
disagreement about how to best go about satisfying a set of shared values. I dissent from the
political liberal position in the following respect: Political liberals hold, or tend to hold, that
political discourse should be structured in such a way that discussion of people’s comprehensive
values—their conception of flourishing, their religious beliefs, and so forth—play no essential role
in picking out how to best achieve the shared values. That is, while citizens may be able to present
religious reasons in public political discourse, they must ultimately be able to present their political

9
positions independent of any religious ideology. Similarly, while citizens may be able to present
their comprehensive conception of what makes for a flourishing human life, they must ultimately
be able to present the laws and policies that it supports independent from that conception of
flourishing.
I don’t think this is necessary. That is, I think that it is perfectly possible and legitimate for
people to infuse their interpretation of how to best go about satisfying a set of shared values with
a more comprehensive conception of morality or politics. The argument of the dissertation is,
again, a proof of concept for this possibility. By taking the Kantian position to establish a set of
shared values, the right to equal freedom, and showing how this right can be interpreted through
more comprehensive conceptions in such a way that is still legitimate, it shows the possibility of
an alternative conception of how public political discourse may operate, separate from the political
liberal conception. As noted before, it allows for a diverse but constrained political arena and
permits the state to be sensitive to the concerns of citizens about flourishing, based on their
different perspectives, while maintaining a common conception of what the state is for.
It is beyond the scope of this dissertation to argue fully in favor of this alternative
conception of public political discourse and way of accounting for legitimate political
disagreement in comparison to the political liberal conception. My goal, as with demonstrating
how a non-perfectionist foundation for the state is compatible with a perfectionist state, is simply
to show how this might be done. It is to provide an alternative to the political liberal view which
is able to account for legitimate political disagreement. I call this position political perfectionism.
4
4 See Quong, Liberalism without Perfection, ch. 1 for some discussion of political perfectionism. The only other
existent defense of political perfectionism, as far as I am aware, is by Collis Tahzib (A Perfectionist Theory of Justice.
Oxford University Press. 2022). See my “A less perfect perfectionism,” (Social Theory and Practice, forthcoming)
for some discussion of how my version of political perfectionism differs from his.

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While my goal is not to provide a full defense of this view, it may do well to note a few attractive
features of this vision, to justify why it is a particularly compelling way of explaining legitimate
political disagreement. I think there are two main attractions. The first attraction is that while
political liberalism can explain legitimate political disagreement about what laws and policies we
should adopt, it cannot explain legitimate political disagreement, or at least the full range of
legitimate political disagreement, about what considerations we should take into account in
politics. That is, in political discourse it is common for people to appeal to unshared premises
about religion or flourishing. It is, of course, also common for people to criticize others for making
such appeals—to hold that we should not use such considerations. Political liberals can explain
this second feature—they can explain why there is a criticism for when others appeal to unshared
premises in political discourse. It cannot explain, though, why there seems to be legitimate
disagreement between the two sides concerning how the political discourse should be structured,
even though it seems that we intuitively accept both sides as legitimate. Political perfectionism,
then, has one advantage over political liberalism: It can explain legitimate disagreement both over
what laws and policies we should adopt, and legitimate disagreement over how we should structure
our political discourse.5
The second attraction is that political liberalism is often thought to exclude certain kinds
of people from political discourse or, at the very least, exclude them from being able to receive
certain kinds of political good. Namely, it seems that those who are unable to justify the policies
they support in terms of public reasons are excluded from certain kinds of shared goods—such as
civic friendship and civic respect—and are appropriately subjected to certain kinds of negative
5 This argument is developed in more detail in “A less perfect perfectionism.”

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reactive attitudes. Often political liberals downplay the significance of this exclusion, holding that
those excluded are unreasonable and are unwilling to engage in the shared political values. I don’t
think this is true. I think it is plausible that reasonable people may be in situations where they lack
the ability to appeal to public reasons in support of the positions they hold. Political perfectionism,
I think, can include these citizens fully in the public political discourse insofar as it permits appeal
to religious ideals and conceptions of flourishing, and does not require appeals to shared reasons
or public reasons. In this way, political perfectionism can allow for a more inclusive public political
system.
These are mere sketches of the advantages to political perfectionism, not complete
arguments to defend the position. And the goal of this dissertation is not to defend political
perfectionism itself. It is, rather, to show the possibility of political perfectionism by showing how
one might develop a political philosophy that can identify a broad, shared value that many different
religious and philosophical views could endorse, while at the same time allowing for those who
hold those views to use them in interpreting how to best achieve that value.
I thus have three goals in writing this dissertation. The first goal, and the one that is most
explicitly undertaken in the dissertation, is attempting to explain how Kantian political philosophy
is possible given the indeterminacy inherent in it. Two other goals—to show how one can combine
an anti-perfectionist foundation to the state with perfectionist state conduct and to provide an
answer to the problem of legitimate political disagreement—are not addressed directly in the
dissertation. But the solution to the problem of indeterminacy in Kantian political philosophy
proposed in this dissertation also supplies a proof of concept for how one can achieve those two
further goals. Of course, this all depends on the plausibility of my answer to this problem in
Kantian political philosophy, and so it is now to this issue that we turn as we begin the dissertation.

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Chapter 1: Kantian Foundations: Equal freedom and domination
Introduction
The right to live one’s own life may be seen as underlying a variety of different ideals.
People’s self-sovereignty, people’s status as free and equal, people’s claim to mutual independence,
or their self-ownership all involve, to various degrees, thoughts about what it is to have a right to
live one’s own life.6
It is, though, beyond the scope of this project to try to cover all these different
ways of understanding the right to live one’s own life or to develop a conception of it that is meant
to integrate the underlying insights. To make this project tractable, rather, I will focus on one
plausible and attractive interpretation of this right: The Kantian ideal of people’s right to equal
freedom, sometimes called their mutual independence.7
My goal in this chapter will be to unfold the right to equal freedom, not argue for it. While
I address some worries in Section [4] about the coherence of the idea of the Kantian right to equal
freedom, the purpose of this chapter is to provide a workable conception of the right to live one’s
6 For self-sovereignty see Joel Feinberg (The Moral Limits of Criminal Law Volume 3: Harms to Self. Oxford: Oxford
University Press, 1986, chs. 18-19), for people’s status as free and equal see John Rawls (Political Liberalism.
Expanded Edition. New York: Columbia University Press. 2005), for the claim to mutual independence see Arthur
Ripstein (Force and Freedom: Kant’s Legal and Political Philosophy. Harvard University Press. 2009) and Japa
Pallikkathayil (“Deriving Morality from Politics: Rethinking the Formula of Humanity.” Ethics. Vol. 121. No. 1. 2010.
pp. 116-147; “Neither Perfectionism nor Political Liberalism.” Philosophy & Public Affairs. Vol. 44. No. 3. 2016 pp.
171-196), for self-ownership see Robert Nozick (Anarchy, State, and Utopia. United States: Basic Books. 1974) and
Peter Vallentyne (“Libertarianism and the State.” Social Philosophy and Policy. Vol. 24. No. 1. 2007. pp. 187-205).
7 The most prominent account of this right, and the one I will primarily follow, is presented by Arthur Ripstein (Force
and Freedom). Similar accounts of mutual independence can be found in Louis-Phillip Hodgson (“Kant on the Right
to Freedom: A Defense.” Ethics. Vol. 120. No. 4. 2010. pp. 791-819; “Kant on Property Rights and the State.” Kantian
Review. Vol. 15. No. 1. 2010. pp. 57-87), Japa Pallikkathayil (“Deriving Morality from Politics”; “Neither
Perfectionism nor Political Liberalism”), Anna Stilz (Liberal Loyalty: Freedom, Obligation, and the State. Princeton
University Press. 2009), Helga Varden (“Kant’s Non-Voluntarist Conception of Political Obligations: Why Justice is
Impossible in the State of Nature.” Kantian Review. Vol. 13. No. 2. 2008. pp. 1-45; “Kant’s Non-Absolutist
Conception of Political Legitimacy—How Public Right ‘Concludes’ Private Right in the “Doctrine of Right.” KantStudien. Vol. 101. No. 3. 2010. pp. 331-351), and Ariel Zylberman (“The Public Form of Law: Kant on the SecondPersonal Constitution of Freedom.” Kantian Review. Vol. 21. No. 1. 2016. pp. 101-126).

13
own life in terms of the Kantian right to equal freedom. Whether it is the best conception of the
right to live one’s own life, or whether the right to live one’s own life or the right to equal freedom
ultimately survives normative scrutiny, is something beyond the purposes of my argument. Of
course, there is much to recommend both the right to live one’s own life and the Kantian
interpretation of that right. The right to live one’s own life reflects various deeply-held liberal
commitments against the right of the state or others to interfere and take control of a person’s life.
It is a way of thinking of persons as free and equal to one another, as having a distinctive kind of
authority over themselves. The Kantian conception of the right to equal freedom provides a
thoroughgoing treatment of that right as a distinctive right, that does not collapse into some other
moral notion, and so reflects a strong commitment to the idea of persons as free and equal. In
elaborating this ideal in this chapter, I will appeal, at times, to these kinds of underlying normative
considerations for my particular interpretation of the right to equal freedom. But these should be
understood primarily as arguments internal to understanding the right to equal freedom, and not
as defenses of the right to equal freedom against some other way of understanding the right to live
one’s own life or as a defense of the right to live one’s own life itself.
This unfolding will take place across the next four sections. In Section [1] I will introduce
the Kantian idea of right as the systematic realization of people’s equal freedom and contrast it
with some other notions of freedom such as the so-called “positive,” “negative,” and “republican”
theories of freedom. I then argue, in Section [2], that part of what is central to the notion of equal
freedom and right for Kantians is the ideal of non-domination. While I introduce terminology here
designed to suit my own purposes, I take that the primary philosophical action in these sections is
simply elaborating ideas that have been developed within this sphere by Arthur Ripstein and

14
similar contemporary Kantian thinkers. The main develop of the Kantian project here involves
elaborating what I take the different forms of domination to be in Section [2].
Section [3] then evaluates some of the implications of this conception in terms of how
rights must be structured in other to ensure that no one is dominated. This, again, is mostly meant
to validate preexisting interpretations of the Kantian project and explain how I understand their
structure, and so lay the groundwork for future chapters. I conclude in Section [4] by considering
two objections to the coherence of the Kantian ideal: First, the objection that it is impossible to
satisfy people’s right to equal freedom and, second, the objection that people’s right to equal
freedom is too indeterminate to function as a political ideal. While I reject the first objection as
misunderstanding what Kantians require, I think the second objection has some merit. Kantians
generally accept that their theory is thoroughly indeterminate in terms of what it requires of the
state. How, then, can people’s right to equal freedom be a functional ideal for guiding political
decision-making? This question will take up the remainder of this dissertation.8
[1] Right to equal freedom: preliminaries and clarifications
[1.1] The nature of Kantian freedom
The fundamental normative concept for Kant’s political philosophy, and contemporary
Kantian political philosophy, is the idea of right. The concept of right, at least as understood here,
concerns the enforceable claims people have against others—i.e. the rightful exercise of coercion
8 Before continuing, it is important to note that my account here is meant to be a Kantian account, rather than Kant’s
account. That is, while I will operate within a framework developed from Kant’s ideas, I do not claim to provide an
interpretation of Kant’s political philosophy here. My focus is on the contemporary ideal of mutual independence, as
a particular interpretation of the right to live one’s own life that has been developed by Ripstein and others following
a particular interpretation of Kant. For this reason as well, I will not attempt to settle questions about how to best
develop a Kantian political philosophy in light of the most plausible interpretation of Kant. All citations of Kant will
be to the Mary Gregor’s Cambridge Edition of Kant’s works, using the Royal Prussian Academy of Sciences
pagination in the volume.

15
against others.9 These enforceable claims constitute people’s rights—the idea of rights, that is,
concerns what system of rights ought to be adopted. Kantians hold that the idea of right is
fundamental to political philosophy. The authority of the state consists in both the state’s claim to
coercive authority over those within its jurisdiction and the state’s regulation of the coercive claims
of individuals within the state against one another. Insofar as the concept of right is regulative for
the rightful exercise of coercion against others, it is correspondingly fundamental in determining
the range of permissible forms of the state—any form of the state inconsistent with the idea of
right would fail to be a normatively acceptable system of coercion.
The idea of right concerns the systematic realization of people’s freedom through the
creation of a condition in which the exercise of coercion is consistent with people’s freedom. That
is, right is “the sum of the conditions under which the choice of one can be united with the choice
of another in accordance with a universal law of freedom” and an action is right when the action
is consistent with everyone’s freedom in accordance with a universal law.10
For Kant, our rightful
freedom consists in being in a system of freedom wherein any one person’s rightful exercise of
freedom does not restrict or diminish the freedom of anyone else within that system. When I only
use what is my own, what rights I have been distributed, and I do not use what is someone else’s,
I violate no one else’s rights, then I act rightly and in doing so I diminish no one else’s freedom.11
9 Kant, The Metaphysics of Moral, 6:231.
10 Kant, Metaphysics of Morals, 6:230. It is important to note here that the notion of a “universal law” referred to here
should not be identified with Kant’s categorical imperative, but rather should be thought of as similar to the laws
picked out by Rousseau’s general will—laws which do not name any particular person for special treatment.
11 The idea of “acting rightly” here should not be identified with the colloquial way in which we might say someone
acts “rightly” or “wrongly.” It is a technical idea with relation to the idea of right within Kant’s system and is
conceptually connected to the claim to coerce others to respect the right. In general, Kant separates his ethical or moral
theory from his legal or political theory. In part this is due to each theory having a different subject matter: For Kant,
political philosophy concerns establishing rightful external relations between people, that is, the relations that “can
have (direct or indirect) influence on each other,” while moral philosophy concerns a person’s inner relation to the
moral law (6:230). For this reason “acting rightly” should be understood as “acting in conformity with the rights of

16
To understand this in more detail it is necessary to know what “freedom” means for
Kantians in this context. Kant defines freedom as the “independence from being constrained by
another’s choice.”12 This establishes freedom as a relation between one person and another, rather
than a relation between a person’s action and some inner self. In a Kantian tongue, the relevant
form of freedom is a person’s external freedom to act in certain ways in relation to others, not a
person’s internal freedom in acting in accordance with a moral law. Freedom thus does not concern
a person’s virtuous conduct or motives, at least not directly, but rather whether a person’s action is
consistent with everyone else’s sphere of freedom.13
At the same time, the kind of freedom in question cannot be simply the range of external
actions available to a person. The range of external actions available to a person is identified with
people’s negative liberty.
14 A constraint for this kind of freedom is when one person blocks a
person from pursuing a course of action. For instance, if you block off a path that I might walk
down, your choice has constrained what I can do. I am now no longer able to do what I would
otherwise do. This idea is a purely descriptive notion of freedom, a person is more or less free
others” and “acting wrongly” should be understood as “acting in violation of the rights of others.” A system of right,
then, is one in which a person acts rightly so long as they do not violate the rights of others.
12 Kant, Metaphysics of Morals, 6:237.
13 See Kant, Metaphysics of Morals: “That lawgiving which makes an action a duty and also makes this duty the
incentive is ethical. But that lawgiving which does not include the inventive of duty in the law and so admits an
incentive other than the idea of duty itself is juridical” (6:219). Right, the juridical idea of duty, is not concerned with
the incentives/motives for complying the laws, but simply the conformity to law, it is thus compatible with nonautonomous action in Kant’s sense. For this reason, the concept of right is not a notion of “positive freedom” according
to Isaiah Berlin’s categorization of positive and negative liberty (“Two Concepts of Liberty.” in Liberty. Ed. Henry
Hardy. Oxford. 2002. pp. 166-217, esp. pp. 178-192). For further discussion of positive liberty see Charles Taylor
(“What’s Wrong With Negative Liberty,” in The Idea of Freedom, ed. A. Ryan, Oxford. 1979. pp. 175-193) and John
Christman (“Liberalism and Individual Positive Freedom,” Ethics. Vol. 101. 1991. pp. 343-359).
14 For discussion of pure negative liberty see Hillel Steiner (“Individual Liberty.” Proceedings of the Aristotelian
Society. Vol. 75. 1974-5. pp. 33-50; An Essay on Rights. Oxford: Blackwell. 1994), Matthew Kramer (The Quality of
Freedom. Oxford: Oxford University Press. 2003), and Ian Carter (A Measure of Freedom. Oxford: Oxford University
Press. 1999).

17
simply depending on the range of actions available to them. To distinguish it from other notions of
“negative liberty,” we may call this pure negative liberty.
15
Pure negative liberty—as a completely descriptive understanding of freedom—cannot
function as the relevant sense of freedom for the Kantian concept of right because pure negative
liberty cannot establish a consistent system of freedom. When people exist in conditions where
they will inevitably interact with one another, then the exercise of one person’s negative liberty
will diminish the range of negative liberty that others have.16 My standing in the doorway is
inconsistent with you entering or exiting the building. My use of a quarry to build a bridge prevents
your use of those same stones to build a dam. In these cases, one of us (at least) must get in the
way of the other, and only one of us (at most) can achieve our goals.17 The range of negative liberty
each person has, then, is contingent on how others exercise their own negative liberty in virtue of
the fact that people exercising their negative liberty can change the world in a way that makes
previous options no longer possible. If so, then our negative liberties do not form a consistent
system as each person’s sphere of negative liberty impinges on the sphere of everyone else such
that when one person exercises their liberty it may diminish the liberty of others.18
15 See Ian Carter, “Positive and Negative Liberty.” Stanford Encyclopedia of Philosophy. Ed. Edward N. Zalta. Spring
2022 edition. https://plato.stanford.edu/archives/spr2022/entries/liberty-positive-negative.
16 Kant appeals to the “spherical surface of the earth” which “unites all the places on its surface” (Metaphysics of
Morals, 6:262). For “if [the earth’s] surface were an unbounded plane, people could be so dispersed on it that they
would not come into any community with one another, and community would not then be a necessary result of their
existence on the earth” (6:262). In a similar vein, Hannah Arendt noted that the ability of humans to leave earth
following the moon landing provides a fundamental change in the human condition, transcending Kant’s thought (The
Human Condition, University of Chicago Press. 1958, p. 1-6). Even if humans transcend earth, we will still tend to
live together, and so the conflict in our negative liberty still a concern.
17 Or, at the very least, my conduct in these situations eliminates certain conjunctive options you have, e.g. “to exit
the building without pushing by me.”
18 Ripstein makes a similar point (Force and Freedom, ch. 2).

18
This does not mean that pure negative liberty is irrelevant. For we could still understand
the notion of liberty in a normative sense as the range of conduct that we have a right to engage in
unimpeded by others.19 That is, if we understand a person’s freedom in terms of the range of action
allowed to a person given the person’s rights, then we can have a consistent system of negative
liberty if we can have a consistent system of rights. And Kantians agree that we can have a
consistent system of rights—indeed the concept of right requires that there exists a consistent
system of rights.20 We can thus have a consistent system of negative liberty wherein this system of
negative liberty is understood as people’s rightful negative liberty. The concept of right for Kant,
then, may concern the creation of a system of freedom wherein the relevant sense of “freedom” is
each person’s negative liberty as defined by those rights that they are given.
This understanding of freedom seems compatible with a number of contemporary Kantian
accounts. For Kantians “what compromises freedom on [this] view is the restriction of a person’s
agency, understood broadly as the ability to set and pursue ends for oneself.”21 This means that
“you are the one who decides what ends you will use your means to pursue, as opposed to having
19 This is somewhat similar to how some theorists of pure negative liberty understand their theories: Negative liberty
is a kind of good to be distributed and its distribution can be understood through a distribution of rights (e.g. Steiner,
An Essay on Rights; Carter, A Measure of Freedom, ch. 3). The main difference is that Kantians conceive of these
distributions themselves as constituting a system of freedom, over and above the mere pattern in which negative liberty
is distributed. I do not take this to be a mere verbal disagreement about the term “freedom,” but rather a substantive
difference about what explains freedom’s value. Theorists of pure negative liberty hold that quantities of freedom
themselves are valuable and so they must be distributed in some particular way. Kantians like Ripstein hold that the
quantity of freedom is not itself valuable, or not primarily so in terms of establishing the fundamental normative
concepts of the state, but the relations created through their distribution is what is valuable.
20 Of course, this would require us to interpret “rights” in a particular way. On some interpretations, “rights” inevitably
come into conflict with one another because, e.g., rights simply are ways of representing interests and interests
inevitably come into conflict with one another. See Jeremy Waldron, “Rights in Conflict.” Ethics. Vol. 99. No. 3.
1989. pp. 503-519. The interpretation proposed here is already a typical commitment of Kantians, see Ripstein, Force
and Freedom, 34-35.
21 Hodgson, “Kant on the Right to Freedom,” 811.

19
someone else decide for you.”22 Interference with one’s interests is not itself an infringement on
one’s liberty for Kantians, but rather interferences that compromise one’s control. But this notion
of “control” for Kantians is a normative one concerning a person’s means, what a person has a
right to—or, more precisely, a right against others. This makes the Kantian notion of freedom
relational in character. It is not about what I can do, but rather about the constraints I place on
others in determining what they can do with respect to that which I am in control. The Kantian
notion of “freedom” is essentially a normative one concerning the range of actions a person has a
right to with respect to the material world we live in.23
This may be contrasted with other relational notions of freedom such as the republican
theory of freedom promoted by Pettit and Skinner.24 Freedom for republicans consists in the
avoidance of being subject to the arbitrary interferences of others.25 This kind of freedom concerns
the de facto relations of authority between individuals and the capacity of some individuals—those
with power—to be able to interfere with others at their own leisure. The essential relationship for
republicans, then, consists of the relationships of power between individuals and how the relations
22 Ripstein, Force and Freedom, 33.
23 More precisely: The Kantian notion of “freedom” concerns (i) a descriptive notion of the range of actions a person
has and (ii) the rights a person has with respect to that notion. Some may want to say that (i) is “freedom.” This is
fine. If so, we just need to realize that what is described in (i) is not itself normatively central, in the sense of
representing something that is of itself valuable, but rather is what ends up getting distributed via one’s rights.
24 See Phillip Pettit, Republicanism: A Theory of Freedom and Government. Oxford University Press. 1999; On the
People’s Terms: A Republican Theory and Model of Democracy. Cambridge University Press. 2012; Quentin Skinner,
“A Third Concept of Liberty.” in Liberty Reader. Ed. David Miller. Routledge. 2006. pp. 243-254; “Freedom as the
Absence of Arbitrary Power.” In Republicanism and Political Theory. Eds. Cecile Laborde and John Maynor.
Blackwell. 2008. pp. 83-101).
25 Pettit holds that one person dominates another insofar as they (i) have the capacity to interfere with another (ii) on
an arbitrary basis (iii) in certain choices the person could make (Republicanism, 52; On the People’s Terms, 50). The
Kantian and republican positions may be aligned if we understand “arbitrary” in a way such that some interference is
arbitrary only if it asserts control over an individual or what they have a right to. I take it that this is not the standard
way of understanding “arbitrary” on contemporary republican accounts. See, e.g., Pettit (Republicanism, 55) who
holds that “arbitrariness” involves not being forced to track a person’s interests.

20
of power are structured. It is only when the exercise of power is constrained so that it is nonarbitrary, or exercised in the avowable interests of those subject to the power, that people count as
free.26 Thus, the exercise of a power structured to advance the avowable interests of those effected
does not undermined their freedom, while the exercise of power contrary to the avowable interests
of those effected does undermine their freedom.
Kantians, by contrast, understand freedom as freedom from the control of others. Whether
exercises of power are in people’s interests is irrelevant, rather what matters is whether some
people are subject to the control of others, defined in terms of rights.
27 The Kantian conception of
freedom thus requires a notion of what a person has a right to—what a person has rightful control
over. For if there were no rights, then there would correspondingly be no violations of freedom
insofar as no one has rightful control over anything at all. Thus, in the state of nature, where
people’s rights are confined at most to their own bodies. “men do one another no wrong at all
when they feud among themselves” concerning their rights to property.28 The concept of right (as
opposed to a right) thus concerns the establishment of a system of rights in which each person
may determine the ends that they are to pursue with the rights that they have consistent with the
non-violation of the rights of others.29 This both understands persons as the bearers of rights, that
26 Pettit: “Under this conception of arbitrariness, then, an act of interference will be non‐arbitrary to the extent that it
is forced to track the interests and ideas of the person suffering the interference. Or, if not forced to track all of the
interests and ideas of the person involved—these may make inconsistent demands—at least forced to track the relevant
ones” (Republicanism, 55). Pettit later abandons the use of the term “arbitrary” to describe this kind of control, but
maintains the same basic idea: “The most that might be allowed on the republican view is interference according to
interests that you are disposed or ready to avow, where that readiness is easily tested and established” (One the
People’s Terms, 59).
27 Hodgson, “Kant on the Right to Freedom,” 809-813; Ripstein, Force and Freedom, 44-45.
28 Kant, Metaphysics of Morals, 6:307. This does not mean that there is nothing wrong with the state of nature for
Kant continues, saying that “…in general they do wrong in the highest degree by willing to be and to remain in a
condition that is not rightful.”
29 Some may hold that we should be concerned not only with persons but also systems or structures that do not
dominate. See Rafeeq Hasan, “Republicanism and Structural Domination.” Pacific Philosophical Quarterly. Vol. 102.

21
is each person is identified as having rights, and understands persons as, in some fundamental
sense, not subject to the authority of any other person—each person is “their own master” in Kant’s
terms.
The Kantian concept of right thus consists in the creation of a consistent system of rights
that distributes negative liberty between people. For these reasons, the idea of right in Kantian
political philosophy provides an interpretation of people’s right to live their own lives consistent
with an equal right given to others. For each person is granted a sphere of freedom within which
they can direct their own affairs and this sphere must be compatible with others having similar
spheres of their own—no one has the right to intervene against others.
[1.2] Why equal freedom requires rights
The value of establishing a system of rights comes from an ideal about the status of persons.
Within the Kantian system, persons are thought of as free and equal beings.30 This is taken as one
of the normative starting points within Kantian political philosophy—part of the assumptions of
the Kantian system is that we adopt this kind of conceptions of persons. We might say, with Rawls,
that we adopt the normative assumption that people have the power to form, revise, and pursue a
conception of what life they are to live and recognize that having these powers grants a certain
2021. pp. 292-319. Nothing in my account here should be taken to preclude this as a relevant point of analysis, although
within the state of nature, my primary point of discussion, it is not a focus (due to the lack of any concrete systems or
structures defining the state of nature).
30 Notably, Kant argues that the civil condition is based on the principles of freedom, equality, and independence (“On
the Common Saying, 8:290). This involves, in part, understanding persons as not naturally subject to the authority of
others and as equals with respect to their claims of authority overall.

22
status to persons that ought to be recognized and protected.31 This ideal reflects, we might think,
the separateness of persons.32 As free and equal beings, people are entitled to decide how to live
their own lives, so long as they do not infringe on anyone else’s entitlement to decide how to live
theirs. This does not mean that people must conceptualized themselves in this way—it is
compatible with people being free and equal that they conceptualize themselves as subservient to
some other. The point is that it is up to them to live their life. It “is a distinctive aspect of your
status as a person in relation to other persons, entitled to set your own purposes, and not required
to act as an instrument for the pursuit of anyone else’s purposes.”33 This is just the idea that the
concept of right requires that no one is in control of anyone else. In the Kantian tongue, people are
conceived of as mutually independent.
34
People’s mutual independence, though, requires that there is a system of consistent rights.
As people lead their own lives, there is no a priori assurance that their plans will align with one
another in a harmonious fashion. Rather there is always the possibility—in reality an empirical
certainty in conditions where people are interacting with one another—that people’s plans will be
mutually incompatible. My plan to use all the rock in the quarry to build a bridge is incompatible
with your plan to use all the rock to build a dam. My plan to use you for labor to build the bridge
is incompatible with your plan to take a nap all day. And so forth. Without some way of reconciling
31 Rawls, Political Liberalism, 29-35. I take it that for Rawls, understanding people as having these two powers is a
way of understanding them as free and equal beings. See as well Arthur Ripstein’s discussion (“Private Order and
Public Justice: Kant and Rawls.” Virginia law Review. Vol. 92. No. 7. 2006. pp. 1391-1438).
32 The idea of the separateness of persons is, I think, one way of thinking of each person having a right to live their
own life, consistent with a similar right on the part of others. For when we recognize each person as having their own
life to live that we are recognizing them as separate, and not merely as interchangeable elements in our calculations.
33 Ripstein, Force and Freedom, 34.
34 Pallikkathayil, “Neither Perfectionism nor Political liberalism.”

23
our plans with one another, our existences functionally are not separate. It is like Hobbes’s state of
nature—each person would have a permission to use all things, including one another, leading to
a condition wherein there are constant conflicts between persons.
We may put the concern here in terms of the difference between affecting someone and
interfering with someone. I introduce these as semi-technical terms. Affecting someone occurs
when our actions have some causal impact on the possible plans they could enact (an effect), and
so affect them in some way. My singing loudly in the shower in the morning, for example, may
affect others by waking them up, annoying them, or giving them something to dance to. Interfering
with someone occurs when the effects of my actions somehow wrongs them—when it is
permissible for them to constrain me from having that effect. Insofar as you may constrain me
from singing, then my singing is an interference with you, rather than just a mere effect. Or,
perhaps more clearly, I can constrain you from hitting me in the face and so you hitting me in the
face is not merely an effect of you swinging your fist, it is an interference for me. The issue that
arises between independent beings, then, can be put in terms of the need to determine whether the
causal impacts of an action are merely an effect, and so something that others need to adjust their
plans in accordance with, or an interference, and so something that they may permissibly constrain.
Without a way to distinguish between effect and interference, our conflicting purposes are
irreconcilable. For if every way in which one person has a causal impact on the possible plans of
another constitutes only an effect, then there is no limitation on what people can do to one another.
Alternatively, if every way in which one person has a causal impact on the possible plans of another
constitutes an interference, then people are always irreconcilably at odds with one another.35 For
35 This distinguishes the Kantian position from libertarian positions. Whereas it is a problem for libertarian theories
that they apparently cannot account for how humans inevitably have effects on one another, for Kantians it is a
theoretical starting point. The explanation, in part, is due to the fact that libertarians begin with already determinate
rights from the assumption of humans as relatively isolated beings, while Kantians only evaluate humans as beings

24
then each person may constrain the other, and constrain the constraint, and so forth. For this reason,
we need a way of distinguishing when one person affects another and when one person interferes
with another. To do this we introduce the notion of “rights.” Our rights allow us to distinguish
between mere effects—our conduct that we have a right to do that has a causal impact on others—
and interferences—our conduct that infringes on the right of another.36
But simply introducing rights is not enough. We also need to ensure that people’s rights are
consistent with their status as free and equal beings. The worry here is that once we introduce the
notion of rights and thus the normative capacity of one person to constrain others, this introduces
the possibility that some may be subject to the choices of another. After all, this puts some in control
of what others can do. Take the case of the slave-master and the slave. The master asserts a right
over the slave—the slave is the master’s property. It is not just an assertion of raw, physical power
by the master, but rather an assertion of right. The point here is that introducing the possibility of
control also introduces the possibility of domination, that some people are subject to the control
of others.
[2] Domination
For Kantians, then, people’s right to equal freedom requires not just that there is a system
of rights wherein people’s rightful actions do not diminish the freedom of others, but furthermore
with rights insofar as they are in contact with others. The Kantian system of right, then, provides rights in response to
the problem, rather than prior to it. For an expression of this worry about the libertarian position, see David Sobel,
“Backing Away from Libertarian Self-Ownership.” Ethics. Vol. 123. No. 1. 2012. pp. 32-60.
36 For discussion see Japa Pallikkathayil (“Persons and bodies.” In Freedom and Force: Essays on Kant’s Legal
Philosophy. Eds. Sari Kisilevsky & Martin Jay Stone. Bloomsbury Academic. 2017. pp. 35-54; “Deriving Morality
from Politics,” 137-140) and Ripstein (Force and Freedom, 39).

25
that this system of rights does not result in domination.
37 It follows that not every way of setting
up a system of rights wherein people’s rightful actions do not diminish the freedom of others is
satisfactory. I gave the example before of a master and a slave: A possible system of rights that is
consistent is one in which a single master has rights over everyone, so that no one has freedom
other than the master. While this represents a consistent system of freedom, it does not vindicate
the underlying thought of people being equal, and so does not represent a system of equal
freedom.38 The right to equal freedom for Kantians, then, requires that the system of freedom is
not a system of domination.
Domination, for Kantians, consists of one person being subject to the control of another.
That is, a person is dominated within a system of freedom when within that system the person is
themselves subject to another’s control such that another can set their ends.39 This idea of one
person setting another’s ends can include both directly setting another’s ends—say through
possessing their person and thereby controlling what they can act towards—and indirectly setting
another’s ends through taking control of their means, such as through force or fraud, and directing
those means to some particular ends. In both cases I set the ends of another either directly or
indirectly, by setting the ends to which their means are used.40 The idea here is that, as discussed
37 Ripstein, Force and Freedom, 42-50.
38 Kant requires, as noted in Section [1.1], not just non-domination, but also universality—the system of rights is not
to pick out particular people or groups. How could this master-slave system satisfy this condition, given that the master
is given more rights than the slave? Here is one way: A system is set up where each person is, upon birth, entered into
a lottery, and the winners in the lottery are the masters and the losers the slaves. Here universality is respected, but
non-domination is not.
39 Ripstein states that domination occurs when “[o]ne person is subject to another person’s choice; I use your means
to advance purposes you have not set for yourself” (Force and Freedom, 43).
40 See Ripstein, Force and Freedom, 43-45; Private Wrongs, Harvard University Press. 2016, 43-52. It is important
to note that merely making it so that another person fails to achieve their end or has to change what their end is due to
my failure to cooperate is not a form of domination in general (Ripstein, Force and Freedom, 45). For example, if you
need the stone in the quarry to build a bridge, but I get it first to build a house, I have made it so that you now have to

26
in Section [1.2], the Kantian idea of the right to equal freedom is meant to make sense of a
conception of persons as free and equal beings. When people are dominated within a system of
rights, the system of rights fails to satisfy this conception of persons as free and equal because
some people are subject to the control of others. This control, in itself, is antithetical to people’s
status as free and equal beings. It is inconsistent with their status as free as they are subject to the
control of others and it is inconsistent with their status as equal as the control constitutes
asymmetrical relations between persons, one person being subordinated to another. The question
that arises, then, is what it means to be dominated—what it means for one person to be subject to
the control of another.
Kantians typically seem to imagine “being subject to the control of another” as consisting
in one person’s violation of another’s rights. For instance, Ripstein focuses on cases where one
person either “uses” another or “injures” another as paradigmatic cases of domination.41 Similarly,
Hodgson focuses on cases where one person interferes with another’s “agency” through restricting
them in some particular way—such as by injuring them or tying them up.42 The focus on individual
rights violations, though, cannot be the entire story for Kantians. For, as we just noted, there are
ways of thinking about how rights might be structured that would result in domination. The slavemaster cannot have a right to the slave—it is a moral impossibility due to the fact that this would
entail a right to domination, even though the master does not violate the slave’s right in this system.
Here I will outline various ways in which domination can occur consistent with the Kantian dictum
that a person is dominated when they are subject to the control of another. This discussion will
change your end—either by not building a bridge or perhaps by building it of wood. Insofar, though, as the stone was
not yours, this does not constitute my interference with your ends, but simply affecting them.
41 Ripstein, Force and Freedom, 43-45.
42 Hodgson, “Kant on the Right to Freedom,” 811-812.

27
divide domination into two general categories: De jure domination, or domination by another
through the rights and authority they have, and de facto domination, or domination by another
through the violation of one’s rights.
De jure forms of domination are ways that we might distribute rights and powers that are
morally impossible because they are inconsistent with people being free and equal. This is one
way to understand what is problematic in the relationship between the master and the slave. The
master claims to have rights over the slave, but these rights are inconsistent with the slave’s moral
status. To validate the master’s claim would be to encode domination into the concept of right
itself. The problem that accompanies de jure domination is thus theoretical—there is no rightful
slave master and so identifying de jure domination just consists in the limits of morally possible
ways of distributing rights and powers. Such forms of domination are still relevant for they reveal
the limits to how rights and powers may be permissibly structured insofar as de jure domination
reveals that there are imaginable structures of rights that are incompatible with people’s status as
free and equal beings.
We may identify two forms of de jure domination based on how we understand a “rightful”
master and slave relation. De jure domination may consist in (i) the master having authority over
the slave, in the sense of being able to issue commands at will that alter what the slave’s obligations
are. This kind of master-slave relationship might be best understood in terms of the master having
the arbitrary authority to issue rules that the slave then has obligations to comply with—the master
creates new duties that the slave is required to comply with by issuing commands. Or de jure
domination may consist in (ii) the master having rights over the slave—such as a right to the slave
akin to a property right to a chair—that make the slave subject to the master’s choices.43 The
43 This model for slavery is, we might think, an extreme possibility in which people’s rights to external things become
such that they dominate others. Ripstein’s discussion of roads presents a similar case—where the presence of a pure

28
difference between these two cases are in whether the master exercises a moral power to alter the
slaves duties, as in (i), or simply invokes a preexisting property-like claim over the slave, as in
(ii).44 In both cases the master acts within their rights in a way that makes the slave the object of
the master’s control and the slave is unable to exercise their rights without the master’s say-so.
The two forms of de jure domination are still distinct in terms of how we conceive of the way in
which the master may exercise such control—for (i) the master exercises control through altering
what the slave’s obligations are, while for (ii) the master exercises control through possessing the
slave directly.
By contrast, the slave-master simply being able to enforce their will on the slave through
violating the slave’s bodily rights represents a de facto form of domination. For if the slave-master
violates the rights of the slave, then the slave-master is, in some sense, redirecting how the slave
is to use what is theirs and subjecting the slave to their control. More generally this kind of
domination or violation occurs when people violate one another’s rights. The violation of rights
consists in one person essentially getting to control how another may exercise their rights. When I
steal from another I decide how their property will be used. When I break another’s vase I inhibit
their ability to use their property in certain ways. They are thus partially subject to my will, at least
system of private property is incompatible with some of a person’s rights, e.g. to associate with others (Force and
Freedom, ch. 8). If one thinks that slavery is a bad example here, it is possible to substitute some suitable alternative,
e.g. having one’s body completely surrounded by the property of another so that any movement would impinge on it.
44 To get an intuitive grasp of the distinction: For (i) the master is exercising an Holfeldian power over the slave to
alter what duties the slave has, while for (ii) the master is simply exercising a preexisting Holfeldian claim over their
property (the slave’s body) which thereby alters the slave’s duties. In this sense, the duties the slave has in (ii) do not
change, rather the duty is constant and what changes are simply certain empirical facts—in the same way that the duty
others have not to touch my body remains the same, but can change over time as I, for example, move through physical
space. The presence of such a distinction is necessary to make sense of the Kantian claim, as will be explained in
Chapter [2], that the state of nature requires rights to be imposed and not merely exercised. For some (critical)
discussion of this distinction in the context of the state of nature, see Bas van der Vossen, “Imposing Duties and
Original Appropriation,” The Journal of Political Philosophy. Vol. 23. No. 1. 2015. pp. 64-85.

29
in these respects. These are the typical cases that Kantians discuss when they focus on cases of
domination.45
Even here, though, we should be careful. We may want to distinguish between how these
violations occur, specifically with respect to the possibility of vindication or redress against
violations. That is, the violation of a right by another calls for some form of recompense on the
part of the victim of the violation. The ability to claim redress for a rights violation is a way of
affirming a person’s status. As Ripstein discusses, it is a way of recognizing a person’s right.46 We
may thus distinguish cases where someone’s right is violated with some assurance of redress from
cases where someone’s right is violated without some assurance of redress—when rights are
violated with impunity.
47 While both cases represent a rights-violation, and so dominated in some
sense, the latter represents a person as subject to an ongoing condition wherein their rights are
rendered factually impotent. When a person is subject to a system that permits their rights to be
violated with impunity, the individual, we may think, is subject to a system that allows for
domination and it is appropriate, I think, to say that each person is subject to some form of
domination. Single instances of rights violations, on the other hand, may represent cases where a
person is temporarily dominated, but so long as there is a system of redress the domination can be
45 Ripstein, Force and Freedom, 43-45.
46 Ripstein, Private Wrongs, ch. 8; Force and Freedom, 303-305.
47 It is unlikely that there is any society in which it is possible to ensure that crimes are not committed or, if they are
committed, the perpetrator is always caught. Some people’s rights, then, will be violated with impunity—the
probability of redress cannot be 100%. How much redress is needed to not count as being dominated? Presumably, it
cannot simply be some probability that is comparatively high with respect to the state of nature because there is no
possible comparison—the state of nature allows for all sorts of empirical variations on the Kantian account, and does
not rely on anyone violating the rights of others. I believe this is a lacuna in the Kantian account of the state and is
not fully resolved. Here is one possible attempt to answer: What is necessary is that (i) the state is disposed to enforce
the laws, and this disposition is not masked, (ii) the state is disposed to discover whether the laws have been violated,
and this disposition is not masked, and (iii) the laws act to secure people’s right to equal freedom. This, though, is
merely a preliminary suggestion. For discussion of the role of the state in punishing violators of rights, see Ripstein,
Force and Freedom, ch. 10.

30
resolved—the person can be made “whole” with respect to their rightful status (even though they
may not be made whole with respect to the ends which they would have used their rights to achieve
if they had not been dominated in the first place).48
[3] Kantian freedom as a sufficientarian theory
Here we may return to the question we began with in Section [2]: What are the constraints
on the permissible systems of rights? The answer here depends on the ways in which people may
be dominated in the second sense of de jure domination wherein the domination occurs through a
person’s exercise of their rights. This is because it is only the second form of de jure domination
that is concerned with the system of rights itself and its structure, while the first form of de jure
domination concerns the possibility of authority—and issue that we will revisit in the discussion
of the state of nature and the general Kantian justification of the state—and de facto domination is
concerned with rights violations and possible redress to rights violations.
One condition that a permissible system of rights might be required to satisfy is that it
distributes negative liberty in an egalitarian fashion. This understands the idea of creating a system
of “equal freedom” in a literal sense: That there is a moral injunction that we must create an
egalitarian system wherein each person is equally free.49 Each person, then, is to have a roughly
48 Some suggest that non-domination requires equal ex ante probabilities of redress—each person is protected by the
same system of law, and so no one is dominated by being unequally protected by the law. See Thomas Sinclair, “The
Power of Public Positions: Official Roles in Kantian Legitimacy.” Oxford Studies in Political Philosophy Vol. 4. Eds.
David Sobel, Peter Vallentyne, and Steven Wall. Oxford: Oxford University Press. 2018. pp. 28-52. This may be true,
but even so the issue raised in the previous footnote, fn.47, remains. For the ex ante probability cannot be just any
nonzero probability, e.g. a .00000000001% chance of redress seems implausible as a sufficient ex ante probability.
49 Kyla Ebels-Duggan suggests this as a preferable alternative theory of construing freedom for Kant (“Critical Notice:
Force and Freedom: Kant’s Legal and Political Philosophy.” Canadian Journal of Philosophy. Vol. 41. No. 4. pp.
549-573. 2011). Pure negative liberty theorists, as noted previously in fn.13, might develop similar theories wherein
negative liberty is distributed in accordance with some potentially egalitarian scheme of justice as the primary currency
of distribution.

31
equal sphere of freedom in terms of the range of negative liberty that they have a right to. Of
course, there are a number of details that would need to be filled out.50 But we may set aside these
difficulties for now. Here I want to ask: Is satisfying an egalitarian condition necessary in order for
a system of rights to be compatible with non-domination? If not, then such an egalitarian condition
is not a necessary condition for a system of rights to be permissible insofar as the function of a
system of rights is to secure the conditions for non-domination. My argument here is that nondomination does not require any such egalitarian condition.
We may demonstrate this in a simple way: The existence of inequalities of rights, in terms
of the range of negative liberty people have a right to exercise, does not subject anyone to the
control of anyone else by that fact alone. You having a more extensive range of negative liberty
than me does not require me to condition the use of what I do have on your say-so absent
specialized conditions—e.g. where you are in the possession of all my surroundings. For instance,
suppose you have extensive negative liberty rights that grant you possession of large tracts of land.
This makes you “freer” than me—you can go more places and have more material to work with
and so have, plausible, a greater range of negative liberty. This will, presumably, give me reasons
to enter into negotiations with you to capture some of the benefits from your extensive rights. But
so long as our rights are structured such that I do not need to enter into negotiations with you or
subject my choices to yours, I am free to choose to not do so. The inequality itself does not establish
a relationship of domination between you and me.51
50 For instance, what it means for someone to have an “equal” sphere of rightful freedom is unclear. The problem, of
course, may be resolved by providing means of measuring freedom, e.g. Carter (A Measurement of Freedom).
51 Some may worry that this means the Kantian position is compatible with, say, a majority population within a state
setting up a system of rights that maximizes their own advantage to the disadvantage of others. After all, if there is
nothing intrinsically wrong with such inequalities from the perspective of people’s right to equal freedom, then why
can it not be established within the state? Here I want to make two notes on this possibility. The first is that nothing
in this argument shows that it is permissible to establish an unequal system of rights for whatever purpose. As I will
discuss in later chapters, especially Chapter [3] and Chapter [5], there are restrictions on the kinds of considerations

32
This is not to hold that inequalities in rights never matter. It may be the case that the equal
possession of certain rights are a necessary feature of people as free and equal beings. For example,
it may be that inequalities in certain rights, such as rights over an agent’s own body, are
incompatible with non-domination.52 In such cases, if people have unequal rights to their own
bodies they may, by the fact of that inequality alone, constitute being dominated by some others.
The argument here is just that this is not true as a general matter, that is, not all inequalities in the
distribution of rights leads to some form of domination. Rather, whether an inequality leads to
domination depends on the particular circumstances involved.
What kind of circumstance are we imagining here? This is a point in the Kantian story that
is somewhat mysterious. As noted before, there is some form of de jure domination based on how
the system of rights is structured. But it is not clear what the conditions must be for de jure
domination to occur. One minimal standard that seems required is that a person must be able to
exist in the world without the say-so of others.
53 This often seems to be part of what animates the
worry for Kantians about homelessness, the impoverished, and so forth in an entirely private
system of property.54 For someone without a place to stay, the ability to exist anywhere on the face
that can be used. The second, and related point, is that while I am focused on the notion of domination here, the
Kantian system of right requires that the system of rights is universal in the sense that everyone is subject to the same
system of laws. For this reason, no system of rights can be permissibly implement that selects the majority for
advantage qua their status as being in the majority. Such a system would not be appropriately universal and so fail to
be a system of rights consistent with people’s equal freedom.
52 Ripstein, Force and Freedom, 40-43. Cf. Japa Pallikkathayil, “Persons and Bodies.”
53 The “others” in this context should be understood as “other private persons” or “other private entities,” such as
clubs, churches, and economic corporations. The state, or at least a legitimate state, is not an “other” in the relevant
sense here. See Chapter [2] for discussion of why the state can rightfully have control over others.
54 See Ripstein, Force and Freedom, chs. 8-9; Ernest Weinrib, Corrective Justice. Oxford University Press. 2012. ch.
8; Jakob Huber, “Cosmopolitanism for Earth Dwellers: Kant on the right to be somewhere,” Kantian Review. Vol. 22.
No. 1. 2017. pp. 1-25; Jeremy Waldron, “Homelessness and the Issue of Freedom.” Journal of Constitutional Law.
Vol. 1. 2019. pp. 27-50.

33
of the earth would depend on the charity of others and so subject a person to the choice of others.
It is clear, though, that we can avoid this kind of condition while still allowing for unequal spheres
of freedom between people.
These limitations extend as well to the ability to exercise particular rights of ours. Suppose
that one person’s ability to enter into contracts with others depends on the say-so of some third
party separate from the contract. We may imagine, for instance, a system of rights is such that an
adult child is unable to enter into contracts or own property without the say-so of their father.55
Such a system, while not denying the individual’s ability to exist in the world, does deny the
individual the capacity to exercise their rights by making the ability to exercise their rights
dependent on the say-so of someone else. Again, it is not the fact that the father and the child have
unequal spheres of rights which is the problem here, but specifically how those spheres interact
with one another to give one person a right over another’s capacity to exercise their rights.56
These cases do not provide a theory of de jure domination. But they point to what sorts of
limits we should look to in the way rights are structured—that structuring rights in particular ways
may subject some people to the say-so of others. They also help support the idea that nondomination does not require a system of rights to satisfy any particular egalitarian condition.
Indeed, we can make the point a bit stronger: Non-domination only requires a principle of
sufficiency. That is, the structure of rights needs to be such that each person has enough to count
55 That is, there are some substantive constraints on systems of rights. The need for a person to exist somewhere in the
world without the say-so of another is one example that relies on the fact that we must exist somewhere. The same
holds, I think, for various rightful capacities that people have—e.g. the possession of property, entering into contracts,
and so forth. When the exercise of such rightful capacities is subject to the say-so of others—such as when women
are prohibited from owning property or are able to enter into contractual relations only on the say-so of their male
relatives—this constitutes a form of domination.
56 Again, this problem is one that arises between private persons, and not between persons and the state.

34
as not being dominated by others.57 The general skepticism about there being any other distributive
requirement besides sufficiency that systems of rights must satisfy follows from the same general
reason we have for doubting that there is an egalitarian requirement: Non-domination just does not
seem to have any such distributive requirements.
Reflecting on the general indeterminacy of what non-domination requires can help us
appreciate this thought. The Kantian concept of right is significantly indeterminate with respect to
what system of rights is required. As Stilz puts it, “[i]n order to be free-as-independent, I must
have a right to some sphere of property, but it does not matter which specific objects I have a right
to” and so the specific rights that we have could be formulated in various ways.58 There are various
general systems of rights that are compatible with people’s non-domination. Stilz points to a
variety of regimes of property—market socialism, private property ownership, and so forth—that
seem compatible with non-domination. This points to a general indeterminacy with respect to nondomination: It does not pick out any single general system of rights or set of rules that govern the
relationships between individuals. The various systems of rights imagined here have significantly
different distributive consequences with respect to people’s spheres of freedom, while all being
compatible with non-domination.
This indeterminacy can also be applied to the more specific contours of rights within a
single system. For instance, within any system of private property the exercise of any right by a
57 At a theoretical level, thinking in terms of giving each person “enough” is appropriate, but it may be misleading
when we apply the concept to a political system. The general idea is that whatever political system we instantiate
should create systems that, in general, ensure people have enough to avoid domination from others. But insofar as the
systems created are law-like, there is always the possibility of there being a discrepancy between the laws and a
particular circumstance, and it may be that there is no way to resolve the personal circumstance without either
subjecting some people to domination or increasing the chances they will be subject to domination. I set aside these
complications for the purposes of this discussion.
58 Stilz, Liberal Loyalty, 40.

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person creates certain externalities that have an effect on others. Whether the creation of these
externalities is merely an effect, or also an interference, will often be compatible with nondomination in either way. Thus, Pallikkathayil notes that whether my fan blowing over your
flowers constitutes an “interference” or merely an “effect” is not something that in itself subjects
either of us to the control of the other.59 Again, in acknowledging the indeterminacy here, the
concern is not with whether our spheres of freedom satisfy any particular distributive goal other
than securing the conditions for people’s independence. The indeterminacy Pallikkathayil is
pointing to is just that however we determine the answer, people are independent. It is not that
however we determine the answer, people’s spheres of negative liberty will remain equal or remain
equally maximized or such.
The general point here is that no unique specification of rights is required by nondomination insofar as generally it will result in cases wherein either specification is compatible
with non-domination. We should thus think that there is a range of possible systems of rights
compatible with non-domination. But this range does not seem to have any unified requirements
for how people’s spheres of freedom compare to one another or whether they satisfy some further
metric. Rather, this range is unified by the fact that the members each ensure a sufficient range of
freedom for each person such that they are not subject to the domination of others.
“Enough” in this context does not mean “enough in accordance to a person’s
wants/needs/interests/projects,” we are not concerned with a sufficiency condition that comports
with ensuring that anyone ends up in a particular material condition, but rather “enough such that
they are not subject to the control of others.”60 That is, what defines the principle of sufficiency is
59 Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 137.
60 This form of sufficientarianism differs from others, such as that presented by Harry Frankfurt (“Equality as a Moral
Ideal.” Ethics. Vol. 98. 1987. pp. 21-43) and Roger Crisp (“Equality, Priority, and Compassion.” Ethics. Vol 113.

36
nothing external to the concept of right, but rather just is what the concept of right is trying to
secure—people’s status as free and equal beings. When Ripstein thus discusses the idea that rights
are meant to secure people’s purposiveness itself, rather than their purposes, this is the idea that I
take him to have in mind: That what defines whether a person has a sufficient sphere of freedom
is not defined by what they wish to do with their freedom, but rather with what is necessary for
them to count as not being subject to the control of others.61
We may thus see the Kantian concept of right as a theory about the appropriate relations
between persons. The value of these relations, though, does not itself depend on whether they
secure some other good or whether they adhere to some particular distributive metric defined
independently of what the relationship itself requires. Rather, they are valuable in themselves as a
way of avoiding domination and thereby establishing people’s status as free and equal (or mutually
independent) beings. We thus have a general way of understand the Kantian concept of right: The
concept of right establishes the requirement that a system of rights—claims to a sphere of negative
liberty—are established which secure people’s independence from the domination of others.
2003. pp. 745-763). Those doctrines are premised on the relationship of material sufficiency to some state of a
person—e.g. suffering. The Kantian doctrine is not concerned with suffering as such, and so is not concerned with
sufficient material welfare to avoid suffering as such, but rather with securing the conditions for freedom.
61 Ebels-Duggan raises a worry for Ripstein: That in order to avoid circularity, wherein anything that the state
implements is permissible, the kind of freedom he is concerned with cannot just be about relations of domination, but
also the “quantity” of freedom that people have (“Critical Notice,” 563-571). Part of this worry will be raised again in
Section [4.2]. Here I would just like to note that Ebels-Duggan’s worry does not seem to be about circularity per se,
but rather just skepticism that certain rights that Ripstein claims follow from the right to equal freedom actually follow
from it. That is, if Ripstein is correct that the right to equal freedom requires, say, the freedom to associate with others,
then while there is indeterminacy, perhaps, about how to best achieve that freedom, there is no circularity—not just
anything will achieve it, it cannot be defined in just any way. Ebels-Duggan’s worry, then, really is an expression of
skepticism about whether the right to equal freedom has enough content to provide any limits on the state at all.

37
[4] Objections: Impossibility and indeterminacy
I have elaborated the Kantian account of the right to equal freedom in terms of establishing
a consistent system of freedom between persons through a distribution of rights that does not result
in anyone being dominated by anyone else. I have not defended this idea in significant detail—I
am mostly trying to simply operate within the Kantian framework. Correspondingly, I have not
attempted to respond to some substantive worries that some might have about the plausibility of
this conception. But there are two worries that I do want to raise and address, at least in part. For
these objections do not concern the plausibility of the Kantian account on substantive grounds, but
rather on a more fundamental level of whether the Kantian account has provided a workable
normative concept at all. These worries are what I will call the Impossibility Worry and the
Indeterminacy Worry. The first worry holds that non-domination cannot be a coherent ideal
because it is impossible for people to exist in a condition of non-domination. The second worry
holds that non-domination cannot be a coherent ideal because it is too indeterminate, and so offers
no guidance within the political domain.
[4.1] The Impossibility Worry
While the Impossibility Worry has been primarily raised against republican theorists and
their theory of non-domination—which differs from the one presented here—it has also been
applied to the Kantian perspective recently by Kolodny.62 For republican theorists the worry is
generally put in terms of whether there is a robustness condition for people’s freedom. Republican
62 For the Impossibility Worry as applied to republican theories see Thomas Simpson (“The Impossibility of
Republican Freedom.” Philosophy and Public Affairs. Vol. 45. No. 1. 2017. pp. 27-53), Keith Dowding (“Republican
Freedom, Rights, and the Coalition Problem.” Politics, Philosophy, & Economics. Vol. 10. No. 3. 2011. pp. 301-322),
Ian Carter and Ronen Shnayderman (“The Impossibility of ‘Freedom as Independence.’” Political Science Review.
Vol. 17. 2019. pp. 136-146) and Nico Kolodny (“Being under the Power of Others.” in Republicanism and the Future
of Democracy. Eds. Yiftah Elazar and Genevieve Rousseliere. Cambridge University Press. 2019. pp. 94-114).

38
theorists hold that people are free only if they are robustly protected against certain kinds of
interferences. These robustness conditions, though, typically hold that even the mere possibility of
being interfered with arbitrarily or otherwise constitutes a source of unfreedom and domination.63
But, the critics claim, this mere possibility is too weak a condition for no matter what people are
subject to the mere possibility of interference. If so, then the republican theory of freedom cannot
be a coherent ideal to pursue as it is an impossible ideal.
Let’s call the idea that there is this “robust protection” against interference—such that a
person counts as unfree if it is possible for another to have the power to interfere with them—the
robustness condition. We may set aside whether republican theorists and others hold such a
condition. Why think that Kantian proponents of non-domination advocate for such a robustness
condition? Kolodny argues that Kantians are concerned about people’s “power” to invade one
another. He proposes something he called the Can Do test as an interpretation of what it means for
people to have the “power” to invade one another. This interpretation told holds that X has the
power to invade Y just in case, holding fixed everything else other than X’s will, were X to will to
interfere with Y, then X would interfere with Y.
64 This, quite clearly, attributes the robustness
condition to Kantians for then the mere possibility of X interfering with Y if X willed to do so is
sufficient to constitute Y being under the power of X, i.e. dominated by X. But why think that
Kantians are required to accept this condition?
Kolodny adopts this interpretation on the basis of his reading of the Kantian complaint of
the state of nature. He thinks the Kantian complaint is that in the state of nature people are always
63 I take no position on whether the republican theory of freedom is in fact subject to this problem. For a response by
republican theorists to this problem, see Frank Lovett and Philip Pettit, “Preserving Republican Freedom: A Reply to
Simpson.” Philosophy & Public Affairs. Vol. 40. No. 4. 2019. pp. 363-383.
64 Kolodny, “Being under the Power of Others,” 97-98.

39
in the position to possibly interfere with one another, and so they count as being under the unilateral
power of others.65 For, according to Kolodny, Kantians think that even if there is no problem of
coordination and no threat by anyone else, we would still need the state.66 The only explanation
Kolodny has for this is that Kantians think that the mere possibility of interference constitutes a
form of domination that makes people unfree. If so, then it seems that Kantians—insofar as they
are committed to the idea that the state of nature is a condition inconsistent with the concept of
right—are committed to the Can Do test for determining whether people are dominated and so
committed to an incoherent ideal.
This is not a good interpretation of the Kantian position on the state of nature and the
justification of the state. As we saw in Section [1], the Kantian position requires that we establish
a system of rights that distributes people’s negative freedom. The problem with the state of nature,
as we will discuss in detail in Chapter [2], is that there is no way to establish a system of rights
that distributes people’s negative freedom in a pre-political condition that is consistent with
people’s status as free and equal beings. The problem is not that people are dominated because of
the mere possibility of invasions by others, but rather because there is no system of rights in the
first place. As Kant puts it, “men do one another no wrong at all when they feud among
themselves” in the state of nature, rather “they do wrong in the highest degree by willing to be and
65 Kolodny holds that “X dominates Y (let us now say) when X is a will with the power to invade Y, which will is
“alien” with respect to Y and either (i) “arbitrary” with respect to Y, or (ii) “private” or “unilateral.” To “invade” Y is
either (i) to interfere in Y’s choice or (ii) to use or destroy Y’s body or property without Y’s consent” (“Being under
the Power of Others,” 95). The state of nature, then, is a condition where everyone is necessarily dominated, i.e.,
where everyone can necessarily be invaded by someone else. Notice, this is not how I have defined “domination” in
Section [2].
66 “Even in an ideal state of nature—where there is no problem of coordination—where a single, definite scheme
strikes us all as natural—and no problem of assurance—where we know, in the way that we know of good neighbors,
that they will not, in fact, invade—we would still need the state. According to the simple argument, this is because, so
long as we remain in a state of nature, other individuals retain their power of invasion. Although they do not will
invasion, if their wills were to change, they would invade.” (“Being under the Power of Others,” 97.)

40
to remain in a condition that is not rightful.”67 The problem Kant identifies here concerns whether
people are subject to a common system of rights, and not some kind of robustness condition about
rights violations.68
To demonstrate this fully, we can examine whether any form of domination for Kantians
invokes Kolodny’s Can Do test in a problematic way. As discussed in Section [2], a person may
be subject to de jure or de facto domination. De jure domination occurs when a person is either (i)
subject to the unilateral authority of another or (ii) subject to a system of rights that puts them
under the control of others. De facto domination occurs, by contrast, when people are subject to
conditions wherein their rights are either (iii) violated or (iv) may be violated with impunity. Does
the Can Do test, or some similar robustness condition, apply to any of these different forms of
domination?
Let’s begin with de jure domination. We may worry, with (i), that people are inevitably
subject to the unilateral authority of others insofar as someone can unilaterally decide through the
exercise of their will to alter the rights of another. This is the Can Do test applied to the authority
to alter people’s rights. Kantians deny that anyone private person has this authority qua private
person—indeed, as I will argue in Chapter [2] the fact that no private person can have this authority
consistent with non-domination is part of why we need the state. The Can Do test, then, can be
passed in the case of private persons by simply denying that anyone has this authority.
67 Kant, The Metaphysics of Morals, 6:308.
68 Perhaps here there is a concern: This argument holds that even if everyone in fact agreed empirically on which set
of rights is best, the mere possibility that there may be dissent is enough to hold that there is, in fact, not a system of
rights in place. This problem, though, is distinct. The problem is not about whether others have the ability to violate
your rights, but rather whether people live together under the same system of rights. The fact that neither person is
under the same system, and thus the mere possibility of dissent, is a problem, but not one replicated with the state
insofar as when we are under the state by that very fact we are under a common system of rights. This will be outlined
in more detail in Chapter [2].

41
It seems, then, that Kolodny’s argument must be that insofar as there is any agent with the
authority to change people’s rights, it is a unilateral authority, and the state is one such agent. This
is false on the Kantian account. As we will discuss in later chapters, Kantians have good reason to
distinguish between public and private wills in terms of the unilateral exercise of authority, and
have reason to hold that domination only comes through the unilateral exercise of private
authority.69 If so, then the Can Do test as applied to the first form of de jure domination is limited
as it only applies to some agents for Kantians—if there are private individuals with authority over
others—but not necessarily all agents—such as the state. The fact that the state can alter people’s
rights at will is not, for Kantians, a form of domination insofar as the state acts within its legitimate
domain and so the Can Do test does not apply to detecting domination for this form of de jure
domination.70
The second form of de jure domination, (ii), is when people’s ability to use their means are
subject to the say-so of others due to how people’s rights are structured—the structure of rights
allows some people to take control of others. This seems to require a robustness condition: If an
agent can at will use their rights to rightfully take control of others, then the others are dominated.
In this case, then, the Can Do test seems to be appropriate for evaluating whether a system of rights
involves de jure domination in this second sense. It is important to note, though, that the robustness
condition concerns what people can rightfully do, and not just whatever they can do. In this sense,
the actions evaluated for the Can Do test here are restricted to those done with right. Let’s call this
69 See Sinclair, “The Power of Public Positions.” See also Chapter [2]. This is part of why Kantians think the state is
necessary: It is a moral impossibility for anyone to have this kind of authority, but also it is necessary for someone to
have this kind of authority to avoid the second form of de jure domination in the state of nature—as people need to
have some rights to distinguish between interferences and effects.
70 An alternative way of putting this point: For Kantians, it is not the mere fact that some agent has the authority to
alter another’s rights which is the problem, but rather particular facts about the kind of agent and the ways in which
that agent alters the rights.

42
the Can Do with right test. The question, then, is whether it is possible for there to be a condition
in which the Can Do with right test is passed, that is, where people are not subject to the rightful
control of others. It certainly seems possible within a Kantian system. After all, the point of the
state and various public structures (e.g. public roads, parks, and welfare programs) are designed to
ensure that no one is subject to the private domination of others, that is, they are designed so that
no one can become rightfully subject to the choices of another.71 Thus, while domination in
accordance with Can Do with right is objectionable from the Kantian perspective, it simply
represents a limitation on the permissible ways of forming systems of rights and imposes duties
on the state to provide public means to people.
In any case, it seems that Kolodny’s primary target for the Can Do test is a kind of de facto
domination.72 For he suggests that it is in the fact that people still can violate our rights that the
Can Do test is not met and whether people act against our rights is a kind of de facto domination.
It is true, of course, that people can always violate one another’s rights. Rights are not magical
barriers. But when we discussed de facto domination the mere possibility of having one’s rights
violated did not mean that a person was dominated. Rather, only (iii) actual violations of one’s
rights constituted a kind of domination or (iv) being subject to a system wherein one’s rights may
be violated with impunity constituted a kind of domination.73 Domination thus does not merely
71 See the citation of discussions of substantive requirements that arise from the right to equal freedom in fn.54.
72 Kolodny, after all, asks whether X would succeed in invading Y if X willed to do so, where “invade” is understood
to involve either the interference with Y’s choice or Y’s property/body. This is a de facto relationship between X and
Y.
73 Robert Talisse raises a worry for republican theories of non-domination that include an impunity condition
(“Impunity and domination: A puzzle for republicanism.” European Journal of Political Theory. Vol. 13. No. 2. 2014.
pp. 121-131). He notes that a person can have their rights violated without being violated with impunity, and so
republican theories of freedom can face a dilemma: Either admit that violations without impunity can be dominating
or accept some plainly counterintuitive cases. I do not know if this is an issue for republicans, in any case, this is not
a problem on the Kantian account presented here. After all, a person is still dominated, even if temporarily, by a
violation of their rights. The violation with impunity condition simply refers to whether a person is dominated without

43
concern whether someone can violate another’s rights, but whether someone does or can with
impunity violate another’s rights. For the former the Can Do test is inapplicable—what matters is
not whether someone can violate rights but whether someone does violate rights—while for the
latter the Can Do test can be met through a civil and criminal justice system that remedies wrongs
done to citizens.
Kolodny acknowledges this possibility, but he does not see why this might be the relevant
worry for de facto domination. He asks, rhetorically, why we should be concerned with whether
people are punished after the fact, given that “our concern is being proof from invasion.”74 The
simple answer, as outlined above, is that our concern is not being proof from invasion, but rather
having our moral status as free and equal beings respected. Having our rights vindicated is a way
of having our status respected and it is only when people are systematically without vindication—
or perhaps subject to an unequal system of vindication—that this status is denied. Indeed,
Kolodny’s argument itself gives us good reason to prefer restricting de facto domination only to
cases of actual rights violations or being subject to systems that do not allow for redress of rights
violations, rather than the mere possibility of rights violations—for it is impossible to satisfy a
condition that is concerned with the mere possibility of rights violations.75
For these reasons, the Kantian account is not subject to the Impossibility Worry because it
is possible to create structures that satisfy the relevant condition that the Kantian state is required
to achieve to avoid domination—securing the right to equal freedom. Further, the Kantian
their rights being actively violated, e.g., the condition of a slave that is under the de facto power of a benevolent
master.
74 Kolodny, “Being under the Power of Others,” 98fn.3.
75 And this is not ad hoc either, given that Kantians such as Ripstein hold that a person’s right itself works through its
redress.

44
conception of domination passes the Can Do test, at least when that test is appropriately understood
within the context of the Kantian conception. In other words, it is not the mere possibility of being
dominated that matters, but rather whether it can be done by a private will either with right or
without vindication. This condition only obtains in the state of nature, where no system of rights
has been established, and the state should be able to create a system of rights that avoids those
conditions, although the systems we create will often be imperfect in this regard.
[4.2] The Indeterminacy Worry
The Indeterminacy Worry holds that the concept of non-domination, since it does not give
determinate content for how we should structure our rights, is thereby defective as the fundamental
normative political concept.76 As explained in Section [3], Kantians admit that the right to equal
freedom does not give determinate guidance for what system of rights must be implemented. The
basic problem that emerges is that it seems that if the concept of right is indeterminate then either
we are left without any way of establishing a system of rights, as there is no way to decide what
system of rights should be put in place, or some other value (or values) must be appealed to in
order to escape the indeterminacy of people’s rights.
In the first case, it seems that the concept of right cannot be the fundamental normative
political value, as it simply does not give us any direction for politics. For it seems that there will
be a number of different ways of structuring the institutions of the state and its laws and policies
that are compatible with securing people’s right to equal freedom. If so, then there does not seem
to be any principle of selection to decide between different ways of structuring people’s rights. In
76 For varieties of this worry, put in terms of “circularity” concerns, see Ebels-Duggan (“Critical Notice”) and Laura
Valentini (“Kant, Ripstein, and the Circle of Freedom: A Critical Note,” European Journal of Philosophy. Vol. 20.
No. 3. 2012. pp. 450-459).

45
the second case, it seems that other values must be included with people’s right to equal freedom
to make it complete. If so, then there could be a lot more content in the fundamental political
concept than Kantians normally think—it would involve not just equal freedom but also whatever
other values we use to establish a determinate system of rights. A dilemma thus emerges: Either
no values other than the right to equal freedom may be appealed to, but then the Kantian project is
too indeterminate to be a usable political philosophy, or some other values other than the right to
equal freedom may be appealed to in making political decisions, but then Kantians would have to
admit values other than the right to equal freedom among the fundamental normative political
concepts.
I believe that Kantians should accept the second horn of the dilemma—that values other
than the right to equal freedom may be appealed to in making political decisions—but deny the
consequence—that Kantians have to admit values other than the right to equal freedom among the
fundamental normative political concepts. That is, I argue that values outside the right to equal
freedom may be used in political decision-making, without thereby treating those values as part of
the fundamental normative political concepts. These further values are simply practical
considerations that are used to decide between otherwise permissible options, to clarify the
application of the right to equal freedom within the political setting. They are not themselves part
of the fundamental political concepts.
To demonstrate the possibility of this response for the Kantians is beyond the scope of this
chapter. Rather, this position is developed over the course of the dissertation in Chapters [3], [4],
and [5]. In Chapter [3] I outline, in more detail, the problem that emerges from indeterminacy
within the Kantian picture and the difficulty that Kantians have in resolving it. In Chapter [4] I
then argue that Kantians should resist solving this problem by including values other than the right

46
to equal freedom within their fundamental normative political concepts. Then in Chapter [5] I
explain how Kantians may include other values to help resolve indeterminacy and the conditions
under which they might do so. Prior to engaging in these discussions it will be useful to explore
how the right to equal freedom justifies political authority and the state, which I will do in Chapter
[2].

47
Chapter 2: A Kantian justification of the state
Introduction
The previous chapter outlined the basic normative political principles of the Kantian
project: The idea of people’s right to equal freedom—the idea that no one is subject to the
domination of anyone else within a system that distributes rights to freedom. Two further points
were raised: That people’s right to freedom requires a system of rights in place, and many different
systems of rights could satisfy this condition. This chapter’s purpose is to give the Kantian
justification of the state’s authority on the basis of those normative principles. This chapter does
so by arguing that people’s right to equal freedom requires a system of rights, but rights are, by
nature, indeterminate. Correspondingly, there must be some agent that has the authority to impose
a system of rights on others. The only agent that can impose a system of rights on others, though,
is the state—no individual can impose a system of rights on anyone else consistent with the other’s
right to equal freedom. The state, then, is the only entity capable of exercising the authority
necessary to establish a system of rights as required by people’s right to equal freedom.
This is argued through the next four sections. Section [1] outlines the target idea of
authority that Kantians attribute to the state—what I call “juridical authority.” Section [2] then
explains why the right to equal freedom requires a system of rights to be in place and why there is
no natural system of rights in place according to Kantians—that there are multiple possible systems
of rights that satisfy the requirements of the right to equal freedom. Section [3] explains why no
system of rights can be imposed on people within a pre-political condition consistent with the
requirements of people’s right to equal freedom. These two sections establish that a pre-political
“state of nature” condition is inconsistent with people’s right to equal freedom. Section [4] then

48
argues that the state can impose a system of rights on people consistent with their right to equal
freedom. I conclude in Section [5] by considering a worry about whether the fact that most states
are founded in ways inconsistent with the right to equal freedom undermines the Kantian position.
[1] Juridical authority
The state, I take it, has the authority to create and enforce laws and policies over a
population and those subject to those laws and policies have a weighty prima facie obligation to
comply with those laws and policies. That is, when the state passes a law, say, requiring that
citizens wear seatbelts, it is not simply threatening to use force against those who refuse to comply
with the law. It is creating a duty or obligation for those citizens to comply with the law.77 Laws
give people reasons to comply, even when the person is unlikely to be caught for violating the law.
For this reason, it seems plausible that laws give citizens some reason to comply that does not
reduce to the punishment appended to it and so the force of law extends beyond simply the ability
of the state to coercively apply the law.
At the very least, the state claims to have this kind of authority. We may call this authority
“juridical authority.” To be precise, juridical authority grants the state the moral power to alter the
obligations of citizens through the creation of laws and policies which permit the use of coercive
77 For discussion of juridical authority in the sense described here see A. John Simmons (Moral Principles and
Political Obligations. Princeton University Press. 1980. esp. chs. 1-2; “Justification and Legitimacy.” Ethics. Vol.
103. No. 4. 1999. pp. 739-771; Boundaries of Authority. Oxford University Press. 2016. esp. ch. 1) and William
Edmundson (“State of the Art: The Duty to Obey the Law.” Legal Theory. Vol. 10. 2004. pp. 215-259). Some deny
that the legitimate authority of the state implies a duty to obey the law and instead simply suppose that it provides a
permission on the part of the state to use coercion to generate compliance. See Robert Ladenson (“In Defense of a
Hobbesian Conception of Law.” Philosophy & Public Affairs. Vol. 9. No. 2. 1980. pp. 134-159) and Arthur Applbaum
(“Legitimacy without the Duty to Obey.” Philosophy & Public Affairs. Vol. 38. No. 3. 2010. pp. 215-239). Even in
these cases, though, something like the problem of juridical authority emerges insofar as the state still has authority
that no one else has.

49
force to induce compliance by the citizens with the obligations created by those laws. These
obligations may be called “enforceable obligations.”
One problem in political philosophy is resolving how the state could have this authority.
That is, while individuals have certain moral powers to alter the obligations of others, this power
usually involves altering the obligations with respect to what others can do to them or what is
theirs. Insofar as my body is involved I can waive your obligation to refrain from touching me.
Insofar as my property is involved I can alienate something of mine to you, making it your property.
The state, though, claims to be able to alter the obligations people have with respect to what people
can do to each other or to themselves or with their own things. A law requiring people to wear a
seatbelt imposes an obligation for people to interact with themselves in a particular way, for which
there is no corresponding analogue concerning the powers people normally have over one another.
As an intuitive matter, taxes take some of what one person has and redistributes it to other people
or utilize it to pay for public projects. And the state can exercise these powers without getting prior
approval by the particular citizen affected by their exercise. The state, it seems, is in possession of
a kind of authority that individuals lack—it can unilaterally impose enforceable obligations on
others, while individuals cannot.78
This gives rise to two questions: First, does the state actually have the kind of authority it
alleges for itself? That is, we need some explanation for why there should be this kind of authority
in the first place and why the state as a specific entity should have such authority. Second, if the
state has this authority, why do individuals lack it? That is, we need some explanation for why this
authority is located particularly in the state, what is distinctive about the state such that it may have
78 For example, Simmons raises the question of how states can have the authority to impose obligations on their
citizens, whereas private enterprises like businesses and charities lack such authority (“Justification and Legitimacy,”
752).

50
this authority. Together these answers will give us a basic justification for state’s juridical authority
and show that citizens have a prima facie duty to obey the state’s laws and the state has the prima
facie right to enforce those laws.79
[2] The Indeterminacy Problem for natural rights
[2.1] Equal freedom and rights
Our central normative political concept is the “right to equal freedom.” This right consists
in the “independence from being constrained by another’s choice, insofar as it can coexist with the
freedom of every other in accordance with a universal law.”80 This represents people as each
having a sphere of freedom in which they may permissibly act consistent with the freedom of
everyone else. That is, each person has the right to set their own purposes and pursue those
purposes with their own means consistent with everyone else doing likewise.81 If I wish to pursue
79 To specify, successfully addressing these questions gives a non-voluntarist justification for the state’s juridical
authority—a justification for the state’s authority that does not rely on whether people consented to the state’s
authority. Common examples of such justifications are natural law or duties of justice based justifications of the state,
associative obligation based justifications of the state, and fair play based justifications of the state. For discussions
of these different justifications, see A. John Simmon (Moral Principles and Political Obligations; “The Duty to Obey
and our Natural Moral Duties,” in Is there a Duty to Obey the Law? Cambridge University Press. 2005. pp. 91-196),
George Klosko (Political Obligations. Oxford University Press. 2008), and John Horton (Political Obligation. 2nd
Edition. Bloomsbury Publishing. 2017). See the citations from Simmons for a defense of a voluntarist conception of
the state’s juridical authority (although Simmons denies that actual states satisfy this condition).
80 Immanuel Kant, Metaphysics of Morals, 6:237. All references to Kant are from Practical Philosophy. Ed. And
Trans. Mary Gregor. Cambridge University Press. 1996. The citations use the Royal Prussian Academy of Sciences
pagination in the volume.
81 See Hodgson (“Kant on the Right to Freedom: A Defense.” Ethics. Vol. 120. No. 4. 2010. pp. 791-819; “Kant on
Property Rights and the State.” Kantian Review. Vol. 15. No 1. 2010. pp. 57-87); Japa Pallikkathayil (“Deriving
Morality from Politics: Rethinking the Formula of Humanity.” Ethics. Vol. 121. No. 1. 2010. pp. 116-147; “Neither
Perfectionism nor Political Liberalism.” Philosophy & Public Affairs. 2016. pp. 171-196); Arthur Ripstein (Force and
Freedom. Harvard University Press. 2009); Anna Stilz (Liberal Loyalty: Freedom, Obligation, and the State.
Princeton University Press. 2009); Helga Varden (Kant’s Non-Voluntarist Conception of Political Obligations: Why
Justice is Impossible in the State of Nature.” Kantian Review. Vol. 13. No. 2. 2008. pp. 1-45; Kant’s Non-Absolutist
Conception of Political Legitimacy—How Public Right ‘Concludes’ Private Right in the “Doctrine of Right.” KantStudien. Vol. 101. No. 3. 2010. pp. 331-351); and Ariel Zylberman (“The Public Form of Law: Kant on the SecondPersonal Constitution of Freedom.” Kantian Review. Vol. 21. No. 1. 2016. pp. 101-126). Cf. Kantian accounts of
“freedom” as unimpeded movement, e.g. Kyla Ebels-Duggan (“Moral Community: Escaping the State of Nature.”
Philosophers’ Imprint. Vol. 9. No. 8. 1-19. 2009; “Review of Force and Freedom: Kant’s Legal and Political

51
the life of a puppeteer, so long as I am only using what is mine—what I have a right to—no one
else has a right to interfere with me.
Central to this idea, then, is a distinction between what is mine—what counts as my
means—and what is not—what counts as someone else’s means. For another to use or damage my
means without my permission is to constitute subjecting what I am in control of for their own
purposes—it is to violate my independence from them.82 The idea of a right to equal freedom,
then, entails the idea of people having means. Let’s take a moment to explicate this idea.
We might begin with the idea of people having some kind of rightful access to the external
world—understanding the “external world” as the entirety of the world including a person’s own
body (and brain!). By “rightful access” I mean just that a person may permissibly use the external
world, i.e., may use the world without wronging anyone. An embodied agent with no means in this
sense—no rightful access to the external world—cannot act freely in the world. In terms of the
sphere of freedom they have, their existence within the world is a kind of trespass, as without any
permissible use of the external world their existence would be null. For people to have any
meaningful form of freedom, then, it is necessary that they have some form of rightful access to
the external world.
It should therefore be at least permissible for people to use some of the external world
without wronging anyone else.83 But this principle alone is not sufficient. For if we only establish
Philosophy.” Canadian Journal of Philosophy. Vol. 41. No. 4. 2011 pp. 549-573). Even accounts that focus on
“freedom” as unimpeded movement, such as Ebels-Duggan, still adopt a similar argument structure in justifying the
state as presented here, see “Moral Community.”
82 For discussion, see Ripstein, Force and Freedom, 42-50.
83 Kant, Metaphysics of Morals, 6:250-6:252; Pallikkathayil, “Deriving Morality from Politics,” 136-137; Ripstein,
Force and Freedom, ch. 3; Martin Jay Stone and Rafeeq Hasan, “What is Provisional Right?” Philosophical Review.
Vol. 131. No. 1. 2022. pp. 51-98, esp. 57-68; Hodgson, “Kant on Property Rights and the State,” 58-63; Stilz, Liberal
Loyalty, 42-43.

52
that people may permissibly use the external world without wronging anyone else then each
person’s sphere of freedom may completely overlap with everyone else’s. This is for the simple
reason that we have not established that any use of the external world yet wrongs anyone else. We
would get a version of Hobbes’s infamous “right of nature” wherein everyone has a right to
everything—including one another’s bodies.84 The distinction, established in Chapter [1], between
what people can do that merely affects other people and what interferes with other people would
be absent. Such a distinction is part of people’s status as mutually independent beings—without
such a distinction each person would be subject to the choices of everyone else. We want not just
that people may have rightful access to the external world, but also that they may at least sometimes
have rightful exclusive access to parts of the external world. We may call this rightful exclusive
access to parts of the external world a person’s means.
85
The right to equal freedom, then, only makes sense if people have means of some kind.
Kantians typically give two categories of people’s means: (i) those that people have innately, that
is, simply in virtue of their existence, and (ii) those that people can acquire, that is, through some
affirmative act. Kantians normally include people’s bodies as being within category (i), though
there is some dispute in this regard.86 For (ii), Kantians typically point to cases such as property
84 Thomas Hobbes, Leviathan: with selected variants from the Latin edition of 1668. ed. Edwin Curley. Indianapolis:
Hackett Publishing. 1994, ch. 14.
85 Rightful exclusive access to some part of the world is compatible with that access being temporally or situationally
bound in some form. That is, my exclusive right might be conditional on circumstance or duration. While these rights
cannot be entirely ephemeral (they must be sufficient to secure people’s equal freedom) there is no need to assume
that because a person has exclusive access with respect to some object at one time that it must be permanent.
86 For accounts of why bodily rights might not be distinct internal to the Kantian position see William Edmundson
(“Review: Force and Freedom Kant’s Legal and Political Philosophy.” Ethics. Vol. 102. No. 4. 2010. pp. 869-873);
Christoph Hanish (“The Mirage of Kantian Human Rights.” Con-Textos Kantianos. Vol. 8. 2018. pp. 92-112); and
Japa Pallikkathayil (“Persons and bodies.” In Freedom and Force: Essays on Kant’s Legal Philosophy. Eds. Sari
Kisilevsky & Martin Jay Stone. Bloomsbury Academic. 2017. pp. 35-54); Cf. Ripstein (Force and Freedom, 177).
For more general accounts see Gerald Gaus and Loren Lomasky (“Are Property Rights Problematic?” The Monist.
Vol. 73. No. 4. 1990. pp. 483-503) and Samuel Wheeler III (“Property Rights as Body Right.” Nous. Vol. 14. No. 2.

53
rights, contract rights, and rights regarding a person’s “status.” For my purposes, not much hangs
on how we carve out this distinction between what rights a person has “innately” as opposed to
what requires some affirmative act to take possession. Rather, the central claim is that the right to
equal freedom entails that people not only have rightful access to the external world, but also they
have rightful exclusive access to some parts of the external world.
[2.2] Indeterminacy of rights
We thus reach the unremarkable conclusion that people’s right to equal freedom requires
that there is a system of rights that picks out what constitute each person’s means. These rights
concern the ability of a person to have a rightful claim to the external world and so the ability of a
person to have freedom—to have their choice be independent of the choices of others—in the
external world. That right requires that there be a system of rights, though, is not sufficient to
establish that there is such a system of rights.87 In particular, Kantians claim that this is because
there is no single system of rights that is required by people’s right to equal freedom. Rather,
people’s right to equal freedom is compatible with various systems of rights, and so there is no
“natural” system of rights that people have.
This simply follows from our discussion of people’s independence and domination in
Chapter [1]. The concept of right concerns the establishment of spheres of freedom for people so
as to secure their independence. This independence requires only that people are not dominated by
others. In some cases, cases of de facto domination, this requires that certain institutions exist to
1980. pp. 171-193). I tend to agree with Pallikkathayil’s argument that bodily rights are also subject to indeterminacy
in the relevant kind of way to make them incomplete in the state of nature.
87 For a good articulation of this point, see Katrin Flikschuh, “Reason, Right, and Revolution: Kant and Locke.”
Philosophy & Public Affairs. Vol. 36. No. 4. 2008. pp. 375-404.

54
secure people’s rights against others. Such cases may be set aside for the purposes of this chapter—
we are not determining institutional designs, but rather the structure of people’s rights.88 In other
cases, cases of de jure domination, this requires that the moral relations between people are such
that no one is dominated by another with right. But there are a lot of systems of rights that are
consistent with no one being dominated by anyone else. Hence, there is significant indeterminacy.
As discussed in Chapter [1], this indeterminacy is of two sorts. The first sort of
indeterminacy concerns the general system of rights. This indeterminacy consists in the fact that
very different ways of accounting for rights could ensure people’s independence. Take competing
theories of original acquisition. Assuming some kind of “Lockean Proviso” ensuring that enough
and as good is left for others, there are a variety of possible theories that are suitable for securing
people’s mutual independence. There are different theories of the means of acquiring rights—e.g.
first possession and infusion of labor theories—different theories of what right can be acquired—
e.g. whether we can have rights to land, or only rights to the fruits of the land—and different
theories of what needs to be done to maintain possession—e.g. whether what is acquired must not
spoil. None of the different combinations of these systems would result in one person being subject
to the de jure domination of others. There are many ways of constructing rights that ensure people’s
equal freedom and so there is no “natural” system of rights required by that people’s right to equal
freedom.89
Even supposing a settled system of rights, e.g., so that we can identify who owns what,
there is still indeterminacy in how those rights apply to specific cases. This is the second sort of
88 This is not to hold that the institutional design of the state is completely unrelated to the structure of people’s rights—
it may be that the people’s rights require that the state have certain institutions. Here I am primarily focused on the
general question of whether the state is needed, and not the question of how the state must be organized.
89 See, e.g. Pallikkathayil, “Deriving Morality from Politics,” 137-138; “Neither Perfectionism nor Political
Liberalism,” 176; Hodgson, “Kant on Property Rights and the State,” 62-63; Stilz, Liberal Loyalty, 40.

55
indeterminacy. The basic question is how our rights interact with the rights of others. For any
exercise of rights creates externalities that affect others. We then have to make a determination
concerning whether those affected have to bear the costs of the externality or whether they may
constrain the owner’s creation of such externalities. The classic case is a person playing a radio:
Does the fact that they own a radio mean that others have to put up with the noise that is made
from it? Or may they rightfully constrain the playing? It is unclear that any particular answer is
required for people’s independence. Determining a general system of rights does not make
determinate all the incidents that attach to those rights.
The claim is not that we do not know or that there is disagreement about rights in these
cases. It is that by nature no particular system of right is required. For prior to defining our means
there is no “natural” way of carving the world up because many ways of carving the world up will
secure our independence. It is only subsequent to some determination that our rights are specified.
The argument is not that it is hard to know what people’s right to equal freedom requires in a given
case due to our underdescription of the case or because we have not thought carefully enough
about the case. The argument is that the right to equal freedom is indeterminate in these cases
because multiple cases are able to satisfy the requirements of the right.90 The claim is that the basic
normative concept—people’s right to equal freedom—does not by nature require any particular
determinate system of rights.91

90 Thus, if property were to sing its owner’s name, the world would be silent. Cf. Hodgson, “Kant on Property Rights
and the State,” 65-66. This is slight hyperbole for dramatic effect: there may be pockets of determinate property
ownership where no matter what innate right converges on a single point. In such cases, indeterminacy would not
prevent possible ownership (perhaps bodily rights are like this).
91 Ripstein’s discussion of ‘indeterminacy’ is unclear in this respect. While he sometimes speaks as if the
indeterminacy is a matter of underdetermination by innate right, as outlined here, he also speaks of it sometimes as if
the indeterminacy is a matter of disagreement. But this disagreement seems to be “conceptually possible
disagreement.” That is, people could conceivably disagree without making a mistake in the concept or the empirical
facts of the case, rather than actual disagreement. See Ripstein. Force and Freedom, 169-170.

56
This creates a difficulty. People’s independence requires a system of rights. But there is no
single, determinate system of rights picked out by people’s independence. On the basis of
independence alone, then, there is no “natural” system of rights. And so, in the condition of mere
nature—that is, prior to some kind of agent enacting or establishing some system of rights—our
independence does not establish a system of rights. Call this problem the Indeterminacy Problem.
92
Our need for a system of rights is thus not satisfied by nature, rather some agent is needed to
establish a system of rights. That is, at least some agent must be capable of exercising juridical
authority. It is only through some agent exercising a moral power to institute a system of rights
that a determinate system of rights can come into existence.
[3] The Unilateralism Problem
[3.1] The Unilateralism Problem and asymmetrical solutions
The Indeterminacy Problem raises an issue with people’s natural condition—by nature
rights are indeterminate. To solve this problem some agent must establish a system of rights. What
agent can establish a system of rights? Intuitively we might think that in a pre-civil condition each
individual is the relevant agent that might establish a system of rights. That is, prior to the civil
condition—the state—the only agents are individuals. If there are only individuals, and if the right
to equal freedom requires the establishment of a system of rights, then it seems plausible that
individuals might have the kind of authority needed to establish a system of rights and so secure
92 Note, the Indeterminacy Problem is distinct from the Indeterminacy Worry in Chapter [1] (although they are related:
the indeterminacy identified in the Indeterminacy Problem gives rise to the Indeterminacy Worry, this is discussed in
Chapter [3]).

57
the conditions for the right to equal freedom. If this is possible then perhaps individuals could have
juridical authority over others, and so the state would be unnecessary.93
The problem with individuals having juridical authority over others to establish a system
of rights is that it would involve a form of domination by one person over another and so would
be inconsistent with people’s status as free and equal beings. Call this the Unilateralism Problem.
Our innate equality with one another establishes “independence from being bound by
others to more than one can in turn bind them.”94 That is, people’s authoritative capacities over
one another must be equal and symmetric—no one person can have unilateral authority over
anyone else consistent with their right to equal freedom. For if people have asymmetric authority
then their equality is disrupted—one person has moral powers that others do not—and the
subjected individual’s freedom is disrupted—another person may unilaterally interfere with them.
And so, any kind of asymmetric authority relations between individuals are inconsistent with their
right to equal freedom by creating a system of unequal freedom between persons.
For this reason, no individual can, by nature, have unilateral juridical authority over others.
For the ability to determine what rights there are involves one person being able to determine the
conditions under which everyone will interact with one another. Suppose I exercise juridical
authority in the state of nature to acquire an apple. You are then constrained with respect to the
apple in a way that you were not before—before you had the privilege to access the apple, my
acquisition deprives you of that privilege and now you have a duty to not use the apple as you
otherwise could have. Your freedom is diminished in a way that relies on my exercise of juridical
93 I will set aside here various empirical problems that would arise with these systems: at most only a few people could
know about the exercise of authority, there would rarely be any way of verifying when the authority was exercised,
etc. While Kantians are sensitive to these kinds of concerns, I do not think they are central to the worry about
individuals in the state of nature exercising juridical authority.
94 Kant, Metaphysics of Morals, 6:237-238.

58
authority over both of us. That is, the exercise of juridical authority results in people lacking the
freedom to pursue certain options that they previously had the freedom to pursue. If any agent is
able to exercise juridical authority and decide for everyone else how to resolve the indeterminacies
regarding rights then that agent arrogates to themselves the ability to constrain the freedom of
others and excludes the ability of others similarly to exercise such authority.
And different ways of structuring a system of rights will matter—how we set up a system
of rights will favor the interests and projects of some over others depending, for example, on what
gets counted as an “effect” as opposed to an “interference.” For this will alter the cases in which
the costs of my externalities are borne by myself or others, and so will alter whether I can pursue
certain projects. This does not show that there is a problem with a system of rights imposing
differential costs on persons, but rather shows that establishing a system of rights does constitute
a non-trivial interference with people. People have reason to care about what system of rights gets
implemented; after all, it is not as though the range of system of rights that may be implemented
are all equally desirable form the perspective of each individual’s projects. For any one person to
have the unilateral authority to constrain others, then, is for everyone else to be subject to their
authority in a way that is inconsistent with people’s status as free and equal beings.95
[3.2] The Unilateralism Problem and symmetrical solutions
95 The appeal to it “mattering” to people what system of rights is established does not rely on the claim that people’s
personal projects determine what system of right may be put in place. As Ripstein emphasizes, people’s right to equal
freedom does not depend on their ability to achieve the particular ends that they for themselves (Force and Freedom,
33-34). Rather, it is a way to highlight why unilateral exercises of authority are problematic: They allow one person
to prioritize themselves and their own conception over others. If people were genuinely indifferent to which system
of rights they were subject to, then we might admit there is a problem here, but not be worried about it, since no one
would care.

59
What about giving everyone this kind of juridical authority over each other? That is, if the
problem with individuals having juridical authority over others is that it creates a system of unequal
freedom where some may constrain others, why not simply give the others the ability to constrain
them back? This allows people to maintain their symmetrical standing relative to one another
within the confines of a pre-civil condition. It is a way of people having the authority necessary to
establish a system of rights, thereby securing the conditions for people’s right to equal freedom,
consistent with people’s status as free and equal.
The main issue with giving a symmetrical solution is that it either (i) recreates the
Unilateralism Problem or (ii) recreates the Indeterminacy Problem. The problem is that just as
there is no “natural” system of rights that is required by people’s right to equal freedom, there is
(similarly) no natural procedure for determining people’s rights that is required either. That is,
given that people symmetrically have authority, we need some way of resolving how conflicting
exercises of this authority are to be handled. Does everyone get a veto on exercises of authority?
Is it that whoever exercises the authority first gets to determine the rights within some domain? As
with what rights there must be, it is unclear whether there is any determinate answer to what
procedure we must use to resolve cases of divergence between people on rights.96 To resolve this
problem, there must be some way of determining what procedure is to be used.
And so, the problem recurs at a higher level. Either someone can unilaterally determine
what procedure is to be used to determine how our exercises of juridical authority determine rights
or it is indeterminate what procedure is to be in place. The first case recreates the Unilateralism
Problem, the second the Indeterminacy Problem. The problem may then be iterated indefinitely
96 Pallikkathayil, “Deriving Morality from Politics,” 137; Sinclair, “The Power of Public Positions,” 31; Stilz, Liberal
Loyalty, 49-50.

60
upward—needing to settle a procedure for a procedure and so forth. While this does not prove that
there cannot at some higher level be a determinate procedure, it seems that skepticism about the
possibility of any such procedure should be the default until some determinate procedure can be
found. Thus, asymmetric exercises of juridical authority amount to a form of unilateral imposition
inconsistent with equal freedom, whereas symmetric exercises of juridical authority suffer from
the inability to resolve cases where exercises of authority diverge from one another.
[3.3] De facto convergences
This worry about whether people have the authority to establish a determinate system of
rights within the state of nature may seem subject to an empirical challenge.97 For suppose that the
previous two sections are correct and that no one in the state of nature—individually or
collectively—has the authority to establish a system of rights over others. All the same, it seems
possible, perhaps even likely, that people might empirically converge on a single system of
rights—either by converging on the judgment of some person or group about rights or simply
through people eventually coordinating on some system of rights.98 That is, while there is no
default system of rights in place in the state of nature, people within proximity of one another
might end up acting in accordance with a particular system of rights. If so, then while there may
97 How can the state of nature—a theoretical construct that is not meant to reflect some historical condition—be subject
to an empirical challenge? Prima faice, there can be an empirical challenge because there are empirical assumptions
about people within that condition and concerning how they interact—e.g. humans are still assumed to be bound by
the spherical nature of the earth, to need to exist here or there, to be limited to moving within three dimensions of
space, and so forth. I do think, as the argument in this section will show, that such empirical arguments do miss the
mark. But I do not think that it is adequate to claim that this is so simply because the state of nature is a theoretical
construct.
98 These different kinds of convergences might be brought about in various ways. Perhaps a person has demonstrated
extreme competence at surviving or flourishing, or some connection to supernatural powers or authorities, or simply
has some charismatic features that inspire others to follow them. Perhaps people within a community have, over time,
developed a system that everyone agrees works. The exact explanation for people’s deference does not matter for the
purposes of my argument here.

61
be no determinate system of rights put in place by any exercise of authority, there may be a
determinate system of rights put in place de facto through this convergence without anyone
exercising unilateral authority over anyone else. The Indeterminacy Problem is thus solved while
the Unilateralism Problem is avoided.
There are two ways we might understand this kind of convergence. On the one hand, we
might understand people as submitting to the judgment of others or to the system of rights their
community has coordinated on. On the other hand, we might understand people as going along
with the judgment of others or the system of rights that their community has coordinated on. The
former case is equal to imagining people in the state of nature voluntarily submitting to the
authority of another—people submit such that they are bound by the decisions of another. The
latter case is equal to people voluntarily following the decisions of another without submitting to
their authority—akin to taking the decisions about rights as a kind of advice which one invariably
chooses to follow.
The first case does not challenge the argument here because it resolves the problem of the
state of nature by establishing an agent with juridical authority over others. That is, it simply
represents one way in which a state-like entity could come about voluntarily from the state of
nature and still relies on some entity having juridical authority over another.99 Such an account
does not pose a challenge to the Kantian argument insofar as the Kantian argument for the state is
meant to show that it is necessary for some agent to have juridical authority and that no such agent
99 I am assuming here that such consent to the persons or groups can be valid in this condition. It might not be in fact
valid—there may be conditions on the kind of entities that people could consent to with juridical authority and
conditions on what makes consent valid which are not present within the state of nature. Indeed, some Kantians
(Varden, “Kant’s Non-Voluntarist Conception of Political Obligation,” 13-21, Ripstein, Force and Freedom, 179-
180) would argue that consent is only possible within a rightful condition, i.e. when the state exists. If so, then the
idea of people “submitting” to another in the state of nature is mistaken, and it is in fact just a kind of “following
along,” i.e. the second case. My argument does not rely on these kinds of claims and is, in principle, compatible with
the possibility of such consensual submissions to authority.

62
is present in the state of nature. By imagining people submitting to another we imagine people
entering into political relations with another. Further, the Kantian argument is designed to show
that the state is justified even if people refused to submit to some kind of authority—that is, it
justifies the non-voluntary imposition of authority. If the challenge of empirical convergence is
just that the state could come about voluntarily, then it is not an argument against the non-voluntary
imposition of the state in cases where people refuse to provide consent or are not in a position to
provide consent to the state.100
The second case—where people defer to one person’s or group’s judgments about the right
to equal freedom as a kind of advice—would represent a challenge to the Kantian argument if it
were true. For then it is not necessary for there to be some kind of juridical authority at all, rather
people could get by through mere convergence on the decisions by the person or group. The
problem with this challenge is that it subjects the maintenance of a rightful condition to the
unilateral decision of others and so makes people’s existence within a rightful condition subject to
the unilateral choice of others—the Unilateralism Problem is not avoided by empirical
convergence in this sense.
This is because a rightful condition is maintained only if everyone within a given area goes
along with the person’s or group’s judgments about the right to equal freedom in every case. But
there is nothing that requires anyone to go along with the person’s or group’s judgment—people
take these judgments as advisory and always have the right to dissent from them and reject them.
This means that whether people are within a rightful condition is subject to the unilateral judgment
100 For example, if valid consent cannot be obtained because the costs of refusal are too high or because participation
within the state system, and the imposition of the state as authoritative over an individual, occurs prior to anyone being
able to give consent, then the Kantian argument is still needed because most people within a developed state system
will find themselves under the state’s authority in a non-voluntary manner.

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of others since people can at any time decide to no longer take the advice into consideration.101 We
may anticipate this occurring—people change their minds over time, especially when they find
decisions disagreeable, and new people enter into society through birth and immigration and so
bring the potential for new ideas. There is thus a non-trivial empirical risk that any particular
convergence will break apart, and so a non-trivial risk of actual unilateral dissent.
The Unilateralism Problem, though, does not need to rely on this empirical risk actualizing
or being probable to arise. The Unilateralism Problem is about people’s moral status—their status
as free and equal beings—and it holds that in order for this status to be respected there must be a
system of rights in place that is not subject to the unilateral will of others. For being subject to the
unilateral will of others is a way of being dominated by them—it requires a person to be dependent
on another’s will for their rights. This is true even if the other person is not disposed to change
their mind for it is a matter of what rights we have concerning others, which are not just dependent
on what other people might do.102 The point is that people have a right to dissent from the system
of rights put in place by their convergence, and so the system of rights is subject to the unilateral
judgment of others.
As an analogy, if a goddess of prophecy descended from heaven and confirmed that no one
will murder Paul Garofalo, this does not (I hope!) give us any reason to think that I shouldn’t have
a right against being murdered. For whether I have a right against being murdered is not dependent
101 This is well drawn out in Varden, “Kant’s Non-Voluntarist Conception of Political Obligations.” See also Ripstein,
Force and Freedom, 169-170.
102 A similar intuition is commonly appealed to in other contexts with respect to the case of the benevolent slavemaster or benevolent despot. These cases are structurally similar: What is wrong with the benevolent slave-master is
that they are permitted to treat their slave in certain ways, not that they will treat their slave in those ways. The problem
is that a person lacks the requisite status that can require a particular kind of treatment by others.

64
on whether others will murder me, but rather about whether others are permitted to murder me.103
Similarly, people’s status as free and equal beings gives them a right to existing within a system of
rights that is not subject to the unilateral will of others. The convergence on some person’s or
group’s judgments by everyone within a given area does not secure this kind of condition, for it
still permits anyone to defect from the system of rights in place. The maintenance of this
convergence is premised on the assumption that people do not exercise what they have a right to
do, but there can be no demand that people not exercise their rights. Kantians can thus give a
principled explanation for why convergence does not resolve the Indeterminacy Problem in the
state of nature while avoiding the Unilateralism Problem.
At the same time, it may be the case that the fact of empirical convergence can mitigate the
urgency for people to leave the state of nature. If people experience the condition as relatively
secure and without serious threat of dissension that would undermine the system of rights, then it
is understandable that they might prioritize other matters. This does not mean that people’s
empirical convergence avoids the Unilateralism Problem, it just reflects the fact that we can
understand why people in certain situations might not personally prioritize solving the
Unilateralism Problem.
104
[3.4] Summary so far
103 For discussion of this idea, see Thomas Nagel (“The Value of Inviolability.” in Morality and Self-Interest. Ed. Paul
Bloomfield. Oxford University Press. 2007. pp. 102-114) and Francis Kamm (Intricate Ethics: Rights,
Responsibilities, and Permissible Harm. Oxford University Press. 2007. esp. ch. 7).
104 For what it is worth, I heavily suspect that we would find that it is urgent to secure some stable system of authority
over people to impose a single system of rights, especially when we exist in conditions with large numbers of other
individuals.

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The argument of Sections [2] and [3] gives us the following conclusions: (i) People’s right
to equal freedom requires that there is a system of rights implemented, (ii) the right to equal
freedom does not pick out a determinate system of rights (Indeterminacy Problem), and (iii) no
individual has the natural authority to establish a system of rights consistent with people’s right to
equal freedom (Unilateralism Problem). These conclusions give an argument against the
permissibility of the state of nature: People cannot remain in the state of nature consistent with
their right to equal freedom because they cannot change the state of nature so that it is consistent
with people’s right to equal freedom.
Kantians sometimes discuss these problems as if they are separate and independently
sufficient to establish the need for the state.105 From the presentation of the argument here, it is
clear that both the Unilateralism Problem and the Indeterminacy Problem are needed to reach the
conclusion that the state of nature is an impermissible condition. This can be shown if we imagine
each argument in isolation. The Unilateralism Problem holds that no one has juridical authority in
the state of nature. This, though, only matters insofar as there is some reason for juridical authority
to be exercised. If we assume that there is a determinate system of rights in the state of nature then
there is no problem with exercising such authority, as it is unnecessary. There might be, of course,
disagreements about who is in possession of what. But these disagreements are a different sort of
issue—they concern people’s empirical knowledge of who has done what or their ability to identify
105 For those who treat these issue as separate, see Ripstein, Force and Freedom, 173-174. Also Pallikkathayil
(“Neither Perfectionist nor Political Liberalism”: 176-177); Thomas Sinclair (“The Power of Public Positions”: 32-
33); and Anna Stilz, “Why Does the State Matter Morally?”: 250-253). While there may be reason to conceptually
separate these issues (for example, the problem of unilateralism is said to justify the legislative authority of the state,
while the problem of indeterminacy justifies the judicial authority of the state), I think the need to exit the state of
nature emerges only when both problems are present. This is particularly important to address some responses to the
Kantian argument for the state, see, e.g., Bas van der Vossen’s argument that duties are not imposed through original
acquisition because it simply is a matter of activating preexisting rights (“Imposing Duties and Original
Appropriation.” The Journal of Political Philosophy. Vol. 23. No. 1. 2015. pp. 64-85).

66
the preexisting system of rights.106 Whatever issues there are with resolving those disagreements,
they are not the problem of exercising juridical authority, and so the Unilateralism Problem does
not recur.
Similarly, the Indeterminacy Problem holds that there is no particular determinate system
of rights in the state of nature. This, though, only matters insofar as no one can exercise juridical
authority to establish a system of rights. If people had such authority then while there would be an
Indeterminacy Problem, the problem would be easily resolved by people simply exercising that
authority. It is only when there is a prohibition on people exercising this kind of authority that the
Indeterminacy Problem becomes insolvable in the state of nature. Their combination thus works
together to generate the conclusion that the state of nature has a major moral problem with respect
to people’s right to equal freedom—their remaining in it is inconsistent with such a right.
[4] The role of the state in establishing rights
[4.1] Initial prospects for the state as a solution
The twin issues of the Indeterminacy Problem and Unilateralism Problem make the prepolitical condition incompatible with people’s right to equal freedom, as the pre-political condition
prevents the establishment of a system of enforceable rights that define people’s means. The state
is proposed to solve this problem. How does it do so?
106 While Ripstein does argue that indeterminacy arises because of “disagreement,” the kind of “disagreement” here
is conceptual, not empirical. That is, “rights are necessarily subject to dispute” and not “always disputed” (Force and
Freedom, 170). A similar point is raised by Pallikkathayil (“Neither Perfectionism nor Political Liberalism,” 176).
Contrast Hodgson (“Kant on Property Rights and the State,” 64-66). Perhaps the Unilateralism Problem could be
extended to not just include cases where principles are underdetermined, but also where there is some kind of
(reasonable) disagreement. If so then the argument for the state presented here could use even weaker assumptions
about how determinate people’s rights are. For arguments that are only premised on disagreement, not indeterminacy,
see Hodgson (“Kant on Property Rights and the States”) and Daniel Koltonski (“Disagreement, Unilateral Judgment,
and Kant’s Argument for Rule by Law,” Journal of Ethics and Social Philosophy. Vol. 20. No. 3. 2021. pp. 285-309).

67
The state’s theoretical ability to solve the Indeterminacy Problem is easy to see. The Indeterminacy
Problem consists of the fact that there are various ways of carving up the world to define what
people’s rights are. The solution to this problem is then to have some agent exercise juridical
authority to define people’s rights. Insofar as we understand the state to be an agent that can
exercise juridical authority, it is a candidate to solve the Indeterminacy Problem through exercising
such authority. But this does not point to anything special about the state, as any agent could,
theoretically, solve the indeterminacy problem insofar as they can exercise juridical authority. The
state is simply constituted to be one such agent.107
The main problem is whether the state is able to avoid the Unilateralism Problem. That is,
it seems inevitable that however we structure the state it will require that some people—officials
in positions of power—exercise juridical authority over other people. In Section [3] I argued that
in the state of nature some people are required to exercise juridical authority overs undermines the
equal freedom of others. But the state appears to have the same features as the state of nature:
Some people—officials—are exercising juridical authority over others. How, then, is the state an
improvement on the state of nature concerning the Unilateralism Problem?
[4.2] The structure of the Kantian state
107 While the argument here attributes agency to the state, it is compatible with a variety of different ways we could
understand the state and state action. What is central in the Kantian account is that the state exists as an entity with a
certain kind of power—perhaps one that it exercises if it is an agent or that is exercised on its behalf if it is not—that
is directed for a certain kind of purpose. For ease of exposition, I will continue to talk as though the state has agency,
but this is not essential for the points made here. For some discussion of the state as a moral agent see Anna Stilz
(“Collective Responsibility and the State,” Journal of Political Philosophy. Vol. 19. No. 2. 2011. pp. 190-208) and
Sharon Byrd (“The State as a ‘Moral Person.’” in Kant and Law. Ed. Sharon Byrd. Routledge. 2006. pp. 379-397).

68
To see how the state can avoid the Unilateralism Problem we need to understand what is
distinctive about the state. I will understand the state as a system of institutions and norms that
govern those institutions that creates laws and policies, and enforces those laws and policies,
exclusively over a given area. Part of this institutional structure consists of the creation of various
offices that people might come to occupy—such as various administrative, judicial, legislative,
and executive offices—in order to exercise the authority of the state to create those laws and
policies.
The point of this institutional structure is to make it so that the exercise of authority by
individuals does not represent the private perspective of any individual, but rather a public or
omnilateral perspective. For the state to represent this perspective it is necessary that the
institutional norms of the state are designed around a perspective that is shared by all. For Kantians
this perspective is represented in the idea of the “original contract:”
The act by which a people forms itself into a state is the original contract. Properly
speaking, the original contract is only the idea of this act, in terms of which alone we can
think of the legitimacy of the state. In accordance with the original contract, everyone
(omnes et singuli) within a people gives up his external freedom in order to take it up again
immediately as a member of the commonwealth, that is, of a people considered as a state
(universi). And one cannot say: the human being in a state has sacrificed a part of his innate
outer freedom for the sake of an end, but rather, he has relinquished entirely his wild,
lawless freedom in order to find his freedom as such undiminished in dependence upon
laws, that is, in a rightful condition, since this dependence arises from his own lawgiving
will.108
The idea of the original contract is not referring to an actual contract formed that allows us to exit
the state of nature, but rather it defines the norms that govern the institutions of the state. That is,
the idea of the original contract requires that we attend to the question of how our institutions,
policies, and laws secure the conditions for people’s right to equal freedom. The state is a set of
108 Kant, Metaphysics of Morals, 6:315.

69
institutions designed around the idea of what people could collectively give their natural freedom
up for in order to secure nothing other than their freedom.
This ideal constrains the possible structure of the state insofar as we cannot imagine the
citizens as creating “any binding arrangement that presupposes that others may treat [them] as a
mere means for pursuing their private purposes.”109 The state is to act only to institute a system of
rights, rather than any private purposes of its own or officials. For if it has any other purpose then
in imposing constraints on the citizens it would use their means for a purpose other than securing
the conditions for the right to equal freedom through instituting a system of rights, and so fail to
treat them as independent. This limits not only the substantive policies the state may enact—the
laws must be consistent with people’s right to equal freedom—but also the political procedures of
the state—the ways that the laws are made must be consistent with people’s right to equal freedom
as well. The laws and policies of the state, then, function as objects of possible choice for
individuals consistent with their own right to equal freedom.110
For this reason, not just any institutional structure will do for Kantians. For example,
institutions organized around the idea that they are to maximize the benefit for a particular person,
religion, or racial group creating rules and norms within the institutions that direct officials to
prioritize that group’s interests. A personality cult in the form of a state simply reflects one way in
which a person can exercise unilateral authority over others. For if the state is designed around
satisfying a particular person’s interests, it does not reflect anything that we might call a public
109 Ripstein, Force and Freedom, 206.
110 There are further complications that arise when thinking about the fact that states will routinely fail to meet the
conditions sent out by the original contract—they will pass illegitimate laws or fail to do what is required of them as
a matter of legitimacy. I do not take up this issue in this dissertation. Typically, Kantians hold that even when the state
fails to meet the requirements set out by the original contract, the state still retains its juridical authority over the
citizens, but that there is some condition, called “barbarism,” under which the state loses its juridical authority. See
Ripstein, Force and Freedom, ch. 11.

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perspective, but rather just their private perspective. Such a set of institutions are not objects of
possible choice for individuals consistent with their own right to equal freedom as it would require
them to subject themselves to the dear leader. While it is an empirical possibility that they may be
willing to do so—as it may benefit them in the long term—it is not consistent with their status as
mutually independent beings and so not the proper object of the “original contract” for Kantians.
We may think of the Kantian state in the following way: The state is a system of institutions
and institutional norms centered on the norm of securing the conditions for people’s right to equal
freedom. This gives us both a purpose that the state is oriented towards—securing the conditions
for people’s right to equal freedom—and constraints on the pursuit of that purpose—it is to be
pursued consistent with people’s right to equal freedom.111
[4.3] The Kantian state as a solution
This description of the Kantian state gives us a way of explaining why the state is able to
avoid the Unilateralism Problem. If we recall, the basic problem is that in the state of nature for
anyone to exercise juridical authority over others it is necessary that they exclude the exercise of
authority by others. This creates a condition of unequal freedom—I exercise authority over you to
constrain your freedom in a way that you cannot exercise over me. As noted in Section [4.1], the
state initially seems subject to the same complaint. When an official enacts a law, they thereby
impose a constraint on me that I cannot similarly impose on them. What is distinctive, then, about
the state?
One might be tempted, initially, to hold that the distinction is in the purpose of the exercise.
That is, the state was defined through institutional norms designed around securing the conditions
111 Ripstein, Force and Freedom, ch. 7.

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for people’s right to equal freedom through defining a system of rights. This is the sole purpose
given to the state. But for any individual in the state of nature their existence extends beyond
securing people’s right to equal freedom—they have their own private purposes that they may
pursue. We might think, then, that what is distinctive about the state is found within the distinctive
purpose that the state inhabits and the individuals in the state do not. Only the state has the sole
purpose of securing the right to equal freedom.
This, though, is not a sufficient distinction for the state. It seems entirely possible that a
person in the state of nature could only exercise their juridical authority for the purpose of securing
people’s right to equal freedom.112 That is, I can imagine an individual in the state of nature taking
up the same kind of perspective that the state is alleged to have whenever they are exercising their
juridical authority. For it is not as if a person must always be acting for their own private purposes,
it seems at least conceptually possible for a person to adopt a perspective wherein their goal is
simply to secure the conditions for the right to equal freedom for everyone. If so, then it does not
seem that the state and individuals in the state of nature are distinguished by the purposes they
may act on alone.
Rather, what is distinctive about the state is that no individual, or any group of individuals
that represents less than the whole people, claims this authority. Officials do not gain their authority
as a kind of natural claim, but rather through the public procedures of the state. This maintains the
symmetric situation of people insofar as when an individual exercises the authority of the state,
this is not based on their own claim to authority, but rather as a component part of the state’s
112 Nico Kolodny makes similar point (“Being under the Power of Others.” in Republicanism and the Future of
Democracy. Ed. Yiftah Elazar and Geneviève Rousselière. Cambridge University Press. 2019. 94-114. esp. 98-104).

72
authority.113 The individual officials are simply the means through which the state exercises its
authority. While their judgments are privileged in terms of determining the system of rights, this
is not due to the nature of the officials as individuals. The equality between individuals is
maintained because no one is treated as having a unique claim to exercise authority, rather people
gain the claim to authority due to their role within the state.
This equality is only plausibly maintained given certain institutional conditions. For
instance, it plausibly requires that the offices of the state be open to the people generally so that
anyone might be able to exercise authority.114 If, for instance, a group of people were permanently
excluded from accessing the levers of authority it is plausible to hold that the judgments of other
are privileged relative to them, thereby undermining the equal status of individuals. Another
plausible requirement is that some form of public participation in governing is possible.115 We
might think that some form of public participation is necessary to ensure that people are able to be
represented within the political system as free and equal beings. These questions of what the
institutions must be like to ensure that the Kantian state can fulfill its function are important and
interesting, but beside the point. For my purposes, the central claim is just that there are some set
of institutions that allows the state to function.
The Unilateralism Problem, then, is avoided due to two features of the state: (i) The state
occupies a public perspective such that the exercise of authority by officials on the state’s behalf
is governed by the idea of the original contract and (ii) by exercising authority on the state’s behalf
113 While this idea is present in some of Ripstein’s discussion of the state, it is most forcefully and convincingly
presented by Thomas Sinclair (“The Power of Public Positions”).
114 Sinclair, “Power of Public Positions,” 44-45; Kant, Metaphysics of Morals, 6:328-6:330.
115 Stilz, “Why Does the State Matter Morally?,” 255-256; Cristoph Hanisch, “Kant on Democracy.” Kant-Studien.
Vol. 107. No. 1. 2016. pp. 64-88; Christian Rostbøll, “Kant, Freedom as Independence, and Democracy.” The Journal
of Politics. Vol. 78. No. 3. 2016. pp. 792-805.

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no individual is placed in a unique position of authority over anyone else, but rather simply acts to
fulfill the purposes of the state. Together they ensure that the exercises of authority by officials
does not constitute them privileging their own judgment, but rather simply as a necessary
component in the state carrying out its function. People’s status as equals is maintained and so the
Unilateralism Problem is avoided.
[5] The Founding Problem
[5.1] The Founding Problem and a preliminary response
The argument so far shows that there is no Unilateralism Problem between officials in the
state and those subject to their decisions, but it does not show how the state could come into
existence. Specifically, if we imagine starting in a non-state situation and then transitioning into a
state, such a transition will, empirically, involve a few persons who arrogate to themselves the
authority to impose their decisions on others. This would seem to replicate the Unilateralism
Problem with the founding of the state, and so a variant of the Unilateralism Problem remains. Let
us call this the Founding Problem.
116
The challenge of the Founding Problem then poses is how it is possible for the state to be
rightful given the fact that the founding of perhaps every political society is done in a way
inconsistent with people’s rights. One way to answer the Founding Problem is to show that there
is some way for the state to be founded by some imposing their rule over others consistent with
116 The Founding Problem is parallel in a number of ways to the wrong of colonization. Kantians typically identify
part of what is wrong with colonization in the fact that it forces people to enter into particular political associations
(Lea Ypi, “What is Wrong with Colonialism.” Philosophy & Public Affairs. Vol. 41. No. 2. 2013. pp. 158-191; Anna
Stilz, “Decolonization and Self-Determination.” Social Philosophy & Policy. Vol. 32. No. 1. 2015). Similarly, the
Founding Problem identifies the issue with the founding of the state as compelling some people to enter into political
associations. In this sense, addressing the Founding Problem involves also addressing what the appropriate response
is to future generations of colonized peoples and whether the state can have legitimate authority over them. The issue
of colonization is raised in Section [5.2], although a complete discussion is beyond the scope of this chapter.

74
people’s right to equal freedom. Perhaps there is some possibility along these lines—for example,
states that are founded by the unanimous consensus of all those within them—but this theoretical
possibility does not undermine the fact that this is not describing the conditions under which actual
states have formed. The Founding Problem is unlikely to be avoided because of the innocence of
founding modern states.
Another way of answering the Founding Problem is by arguing that the issue of improper
founding is no longer a problem for those subject to the authority of the state. This appeals to the
common Kantian point that what matters is not the provenance of the state’s authority, but rather
the fact that the state has, and is appropriately exercising, its authority.117 The idea here is that
although there may have been some improper founding, the existence an improper founding does
not undermine the state. There may be, then, no general worry about the Founding Problem
because while it is an issue for the initial founding of states, it is not a contemporary political
problem given that we live in a world in which states already exist.
The basic concern with the Unilateralism Problem and the Founding Problem is that the
exercise of some authority disrupts the equality between individuals. Granting this, it only shows
that no one can found a state consistent with the right to equal freedom, but not that a state, having
been founded, cannot exercise juridical authority consistent with the right to equal freedom.
Suppose that a state is unjustly founded, as most probably are. This founding is inconsistent with
people’s right to equal freedom, but the institutions imposed may be consistent with people’s right
to equal freedom and work to secure the conditions for that right. Perhaps it is correct to say that
those who are initially subjected to the state are dominated. But this only matters for whether a
modern state could have authority if the Founding Problem undermines the subsequent claim of
117 Ripstein, Force and Freedom, ch. 11. Kant, Metaphysics of Morals, 6:339-342.

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the state on future generations, those who enter into a preexisting state due to the initial
subjugation.
To see this, we can compare the complaints of those in the state of nature who are
threatened with subjugation to a state with the complaints of those born into a state and so
subjugated to it. Do those in the state a nature have a complaint that they are forced out of the state
of nature? Given the argument in Sections [2] and [3] they have no such complaint, because they
have no possible claim to remain in the state of nature. The state of nature is a wrongful condition,
no one has a claim to be in that condition with others. Rather, I think the complaint those in the
state of nature have is that they could have formed (or entered into) a different state in a way
consistent with other people’s right to equal freedom.118 That is, the initial imposition of the state
created a state structured in one way—with a particular constitution, procedures, demographic
profile, etc.—that might have been structured in a different way and those in the state of nature
could have formed or entered into this differently structured state consistent with other people’s
right to equal freedom. Although people in the state of nature have no claim against the state to
remain within the state of nature, they may have claims against the state on the ground that being
forced to enter it as opposed to some other political entity.119
118 Keep this locution in mind. When I am talking about what people could do here, I do not mean that they have the
sheer power or ability to do something, but rather that they have the ability to do something consistent with the right
to equal freedom and what it requires for it to be secured.
119 The account here is my preferred account for why people in a state of nature cannot be forced into a state. It is not
the only Kantian account. For example, Anna Stilz argues that we can only force people to enter into a state when we
are unavoidably forced to interact with them (“Provisional Rights and Non-State Peoples.” in Kant and Colonialism:
Historical and Critical Perspectives. Eds. Lea Ypi and Katrin Flikschuh. Oxford University Press. 2014. pp 197-220).
Katrin Flikschuh, by contrast, argues that people are only required to enter into the state subsequent to making property
claims, and so people in the state of nature who do not make property claims, i.e. “nomads,” cannot be forced into a
state (What is Orientation in Global Thinking? A Kantian Inquiry. Cambridge University Press. 2017. ch. 2). Arthur
Ripstein argues, somewhat similarly, that we can force people to enter into a state only when people mutually make
property claims, i.e. interact on the basis of property relations (Kant and the Law of War. Oxford University Press.
2021. ch. 8).

76
The question, then, is whether those born into a state have a similar complaint. I think no
similar complaint exists. That is, people who simply were born into the state never were in a
position where they could have, rightfully, formed a different state. Given that the entirety of the
earth is subject to some state or other, those born into a state could not form a state by entering
into unoccupied territory—this would always involve the infringement of some state’s territory.
As such, these individuals would have to dissolve part of the currently existing state and reform it
into a different state. For people born into the state to have a parallel complaint to those forced
from the state of nature into a state, then, those born into the state would need a right to dissolve
some existing state (or part of it) to found one that they prefer.120
We should reject that people have such a claim, though. As Hobbes notes, a right to dissolve
part of an existing state to create a preferred one is either a claim to return to the state of nature (if
the right is granted to all citizens then any citizen could dissolve the state, making the state
contingent on the unilateral decision of citizens) or a claim for absolute power by some portion of
the state (if the right is granted only to some citizens, then that group of citizens is given some
privileged power in determining the structure of the state).121 Both options, then, are incompatible
with people’s right to equal freedom, and so people cannot have a claim to partially dissolve a state
to form their own. Insofar as the state is operating in accordance with the requirements of people’s
120 One commitment of the position presented here, then, is that there is no unilateral right to secession held against a
legitimate state. That is, whether some person, or group, has a right to secede from a state cannot be determined simply
by that person or group, but always requires the state itself to also authorize the separation. For discussion of the right
to secession see CH Wellman (A Theory of Secession. Cambridge University Press. 2005) and Anna Stilz (Territorial
Sovereignty: A Philosophical Exploration. Oxford University Press. 2019. chs. 4-5).
121 Hobbes, Leviathan, 138-141.

77
right to equal freedom otherwise, then, it is not clear that anyone born within a preexisting state
has a claim against the state.122
Those born into a state might raise a different complaint. People might hold that states do
have an option to allow people to leave the state without also requiring them to have a right to
dissolve part of the state: States could leave some territory undeveloped, outside their jurisdictional
control, so that people could form a state with that territory. This would be a way for states to allow
people to exit, and so is a way to allow people greater authority over themselves. The fact that this
option is not available, then, is evidence that states are engaged in unjustifiable unilateral
imposition over their citizens, akin to the kind of unilateral imposition over people in the state of
nature. For then it is because states have eliminated a particular option of exit that people lack the
same kinds of options as those in the state of nature, and so the state is responsible for creating a
condition in which people cannot exit. This might create a parallel between the condition of people
born into the state and those in the state of nature.123
The problem with this line of reasoning is that even if it is true that states could have left
open territory that is not subject to any authority, it does not follow that it is the fault of any state,
122 A separate question from whether there is a unilateral right to secede is the question of whether there is a unilateral
right to exit the state and immigrate to some other state. I do not seek to resolve that issue here. One concern that it is
important to raise here is that even if there is a unilateral right to exit a state, this right can only be exercised if there
is also a unilateral right to enter into another state, at least insofar as we are part of a world filled with states. I am
skeptical that any such right exists—Kant’s hospitality rights, for example, do not entail a unilateral right to immigrate
(“Toward Perpetual Peace.” in Practical Philosophy. Ed. and Trans. Mary Gregor. Cambridge University Press. 8:357-
8:358; Stilz, “Provisional Right and Non-State Peoples,” 200-201). For this reason, I do not think it is sufficient to
avoid this problem by appealing to the possibility of emigration from the state.
123 A position like this is presented by Jonathan Quong (“Left-Libertarianism: Rawlsian not Luck Egalitarian.” The
Journal of Political Philosophy. Vol. 19. No. 1. 2011. pp. 64-89). He suggests that states can respect people’s “selfownership” rights, roughly akin to the right to equal freedom, only if they provide people with the opportunity to enter
into a state of nature scenario, a condition where they are not required to cooperate with others (86). This relies,
roughly, on the Lockean principle of leaving “enough and as good” for others in terms of property in the state of
nature. There are, then, two potential further grounds for rejection than the one examined here: One could deny that
self-ownership rights correspond in the right way to the right to equal freedom to make these conditions parallel or
one could deny that there is a duty on the part of states to leave “enough and as good” for others in terms of territory.

78
or any existent state, that there is no such territory. That is, it may be that each state’s acquisition
of territory was consistent with there being an option of exit, but all state’s acquisition of territory
was not. Since, though, each state is a different entity, and not responsible for the conduct of others,
it does not follow that any particular state is responsible for having eliminated the option for people
to exit the state. That is, citizens might have no complaint against their own state for the lack of
an option to exit the state because it is due to the actions of other states, or the actions of various
uncoordinated states in conjunction with each other, that have resulted in the loss of any part of
the surface of the earth that is not subject to some political form of other.124
While it might be true that, inevitably, the founding of states involves some kind of
unilateral action, it does not follow that the problem of that unilateral action undermines the future
authority of the state over its citizens. It turns out that something wrong is inevitable in this
circumstance—either some rights must be violated to form the state or people must remain in a
wrongful condition in the state of nature. Perhaps this places the state in the domain of non-ideal
theory.125 If so, this would be due to the fact that all political philosophy has to be non-ideal, rather
than anything to do with the state in particular. All political philosophy has to address the tragic
circumstances of politics.
[5.2] The challenge of recent history
I believe it is too hasty to leave the discussion of the Founding Problem there. In the
previous discussion I noted that the solution to the Founding Problem is that those born into a state
124 Perhaps the condition wherein the entire surface of the world is controlled by some state or other is inevitable.
After all, nature abhors a vacuum and states are hungry beasts.
125 A. John Simmons, “Democratic Authority and the Boundary Problem.” Ratio Juris. Vol. 26. No. 3. 2013. pp. 326-
357. esp. 355-356.

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have no similar complaint to those who are brought into a state, for those born into a state would
not have had an alternative state they could have rightfully formed or entered into. Insofar as all
modern persons are born within states, it seems, then, that the Founding Problem is no longer a
problem. But this is not quite right.
It is the case that many, or rather most, states are relatively recent inventions. Many
countries have been formed within the past one-hundred years in response to a process of
decolonization.126 Other countries formed in response to independence movements or reunification
movements.127 Still others formed in response to civil war and ethnic cleansing.128 While in many
of these cases there may have been some preexisting administrative system, perhaps one that
followed previous historical political entities, they all do constitute the formation of new states in
recent memory. And while in many cases the populations within these countries may have
preferred the formation of the new state, it is also the case that many within those states may have
lacked any choice in the formation of the new states. Correspondingly, while the Founding
Problem is, perhaps, not a problem for those born into states currently, it seems like it may be a
recurring problem that will emerge over time. For many people have not been born into the state
126 A significant portion of countries that exist today only gained independent after World War II following a process
of decolonization. According to the United Nations, eighty former colonies have gained independence since 1945,
many of which formed their own self-governing state. See “Global Issues: Decolonization.”
https://www.un.org/en/global-issues/decolonization, accessed 12 April 2023.
127 I am imagining here peaceful, or relatively peaceful, separations or unifications that arise between countries. For
an example of a relatively peaceful unification, see the reunification of East and West Germany and for a relatively
peaceful separation, see the partition of Czechoslovakia into the Czech Republic and Slovakia in the Velvet Divorce.
128 These are instances of separation that are either themselves violent or in response to threats of violence. For
example, the most recent country in the world, South Sudan, formed through an independence referendum following
protracted warfare and the breakup of Yugoslavia into Serbia, Albania, Croatia, Slovenia, Bosnia and Herzegovina,
Macedonia, and Montenegro followed an unrecognized independence referendum, protracted warfare, and ethnic
cleansing.

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they are in, but rather have had that state imposed on them unilaterally. The recent past is clear
evidence of this, as is the experience of history in general.
For this reason, something more needs to be said about the Founding Problem. The
argument in Section [5.1] assumes that the modern condition is one in which there is a preexisting,
and static, system of states into which people are born. This is what distinguished those who are
in the state of nature and then subjugated by a state from those who are simply born into a state:
The former, but not the latter, have a complaint that they could have formed a state. But if people
are born into one state and then a new state is formed by means outside of ordinary political
processes—by colonization, invasion, civil war, ethnic cleansing—it seems like those people have
a complaint that is parallel to those in the state of nature: That they could have remained in the
previous state, and so have a complaint to being unilaterally forced into this new state.129 Given
that these kinds of conditions both affect many modern states and arise continuously within history,
it is necessary for the Kantian position to provide some account for them. How can states be
legitimate given that they are recently formed in response to some unilateral political action outside
of normal political operates of the preexisting state the citizens lived in?
One response which is attractive to some Kantians is to hold that whatever the provenance
of the state may be, insofar as the state in fact holds power, and wields that power appropriately,
then it is by that fact alone legitimate.130 That is, the argument presented in Sections [2] through
129 Recall, the use of “could have” here is not merely that is was possible, but that it was possible consistent with the
right to equal freedom. Namely, people were already in a condition where the state of nature was solved, there was no
need for anyone to become subject to anyone’s authority to resolve the problem of the state of nature.
130 Kant, Metaphysics of Morals, 6:339-6:342; Ripstein, Force and Freedom, ch. 11; Laura Valentini, “On the
Distinctive Procedural Wrong of Colonialism.” Philosophy & Public Affairs. Vol. 43. No. 4. 2015. pp. 312-331. It is
notable that Ripstein’s criticism of colonialism focuses on why colonization is impermissible and why treating another
state as a colony—i.e. as having a subordinate political status—is wrongful (Kant and the Law of War, ch. 8). That is,
the integration of the conquered territory into the state, so that citizens are equals, does not perpetuate the wrong of
colonization and such integration does give rise to good title.

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[4] demonstrate the need for some way to avoid subjecting people to the unilateral authority of
others to which the state is a solution. The fact that a state has been imposed by a unilateral means,
of course, is something that is unfortunate—it signals that there was something wrong with the
founding of the state. But whether the state has legitimate authority is answered by the question:
Does the state satisfy the conditions necessary to justify its authority? The provenance of the state
is, for better or worse, irrelevant to answering that question.
This hardline response, though, is worrisome. For it would seem to create an international
system where “might makes right” or, perhaps more accurately, “might makes a good title.” That
is, successful conquest gives a corresponding right to rule over the conquered population. This
seems to be too strong a position. It seems that the provenance of the state must play some role in
determining the legitimacy of a claim to authority.
What, then, can be said? It seems open to the Kantian position to admit that those who are
unilaterally subjected to an authority have a claim against that authority. Specifically, they have a
claim to not be subject to that authority because they could have remained in their previous state,
avoiding the state of nature consistent with everyone’s right to equal freedom. For this reason, the
authority is, in relation to them, illegitimate. Correspondingly, the authority has certain duties with
respect to them—to satisfy their claim and grant them independence. One Kantian response to the
Founding Problem in the context of dynamic shifts in states is to simply admit that it does make
many states lack legitimate authority over at least part of their population (for, as I suggest in
Section [5.1], it does not follow that those born into the state have a similar claim).
This position, though, might be too concessive. It seems possible that there are conditions
under which granting independence is not appropriate, namely, when doing so would either (i)
result in the independent population returning to the state of nature; (ii) result in the independent

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population being unable to secure the conditions for people’s right to equal freedom; (iii) result in
the current state returning to the state of nature; or (iv) result in the current state being unable to
secure the conditions for people’s right to equal freedom.131 It may be that there are more than
this—the thought here is simply that there seems to be some relevant conditions. The explanation
for why (i)-(iv) are conditions under which it may be permissible to not grant people’s claim to
independence is due to the fact that they represent either a condition in which the claim of some
people against being unilaterally subjected to authority comes against other concerns. For example,
no one has a right to return to the state of nature, and so (i) is not a permissible condition to let
people enter into. Similarly, the purpose of the state is to secure the conditions for people’s right
to equal freedom, and so if granting independence (i.e. if respecting one group’s claim to equal
freedom in one particular way) would undermine the equal freedom of others, there is a legitimate
claim on the part of the state to attempt to balance the competing considerations, explaining why
(ii) and (iv) might prohibit independence.
Mere successful conquest, then, does not provide a legitimate title over those conquered.
Rather, such a legitimate title is acquired only if subsequent to the conquest there is no way to
rightly grant independence. Under these conditions, the claim to independence is “superseded” by
the new conditions that exist.132 The extent to which the current set of states satisfies this condition
is an open question. I suspect that given the fact that there are relatively few very recent states—
e.g. states formed within the past two decades—that it is unlikely that there is an effective way in
131 Stilz, Territorial Sovereignty, 134-138.
132 For discussion of supersession see Jeremy Waldron, “Superseding Historical Injustice.” Ethics. Vol. 103. No. 1.
1992. pp. 4-28.

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most cases to grant independence without one of (i) through (iv) being true, and so the claim to
independence would be superseded.
The fact that the particular claim to independence is superseded, though, should not make
us assume that there are no claims on the part of those unilaterally forced into a political
association. That is, there may be some claims to greater political autonomy within the state by
those who were subjugated.133 Or there may be claims to compensation on their part due to what
was done.134 Or, at the very least, there may be a claim to apology and recognition for what has
happened. We should not make the mistake of overfocusing on the question of whether the state is
legitimate. Rather, it is important to acknowledge that citizens can have claims against the state
that do not challenge its legitimacy, but still make demands on how it conducts itself towards them.
Before concluding I want to acknowledge that this answer to the Founding Problem,
especially in the case of a dynamic system of states, is preliminary. That is, there are many
complexities and details concerning particular cases that would need to be worked out to make
this account complete. I have not attempted to address the variety of possible objections that
could be given against the solution here or the complexities that might arise from particular
cases.135 Rather, I hope to have given a prima facie case for the thought that the Founding
Problem is not an insuperable obstacle to the legitimacy of states even in a dynamic world of
states. This allows for a Kantian account of the justification of the state’s authority premised on
133 Stilz, Territorial Sovereignty, 135-137.
134 Waldron, “Superseding Historical Injustice,” 6-7.
135 For example, I have not attempted to address the intuition that some hold (and that I hold at times) that intuitively
the future generations of those subjugated have a similar claim to independence. This would contradict my argument
in Section [5.1] that those born into the state have no claims to independence against it as a general rule. It is necessary,
then, to identify some distinctive feature that attends to the future generations of those subjugated through colonization
that does not attend to subjugation by the state more generally (or, perhaps, identify conditions of supersession that
explain why for most people, but not the future generations of the colonized, the claims are superseded).

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people’s right to equal freedom that does not collapse in on itself due to worries about whether
the founding of states always respects it.

85
Chapter 3: A puzzle for Kantians: Indeterminacy and official discretion
Introduction136
Kantians justify the state’s authority on the grounds that such authority is necessary to
secure the conditions for people’s innate right to equal freedom through establishing a system of
rights—particularly “acquired rights” to property and contract.137 The state is able to do this
because it can represent a “public” perspective—a perspective that only takes people’s innate right
as its end. At the same time, innate right does not give a determinate set of moral conditions that
the state is to bring about. The state must make “determinate something that is morally binding but
by itself partially indeterminate.”138 Those who occupy roles in exercising state power—
legislators, administrators, judges, or what we might generally call “officials”—must make
decisions about how to secure the conditions for people’s right to equal freedom when there are
multiple permissible options.139 In this way Kantians might be thought to address the
Indeterminacy Worry raised in Chapter [1]: The ability of officials to exercise discretion allows
136 I have previously published a version of this chapter as “A puzzle for Kantians: Indeterminacy and official
discretion,” Law and Philosophy. Vol. 43. 2024. pp. 159-185.
137 Accounts of the Kantian position include Louis-Philippe Hodgson (“Kant on the Right to Freedom: A Defense.”
Ethics. Vol. 120. No. 4. pp. 791-819. 2010; “Kant on Property Rights and the State.” Kantian Review. Vol. 15. No. 1.
pp. 57-87. 2010), Japa Pallikkathayil (“Deriving Morality from Politics: Rethinking the Formula of Humanity.” Ethics.
Vol. 121. No. 1. 2010. pp. 116-147; “Neither Perfectionism nor Political Liberalism.” Philosophy & Public Affairs.
Vol. 44. No. 3. 2016. pp. 171-196.), Arthur Ripstein (Force and Freedom: Kant’s Legal and Political Philosophy.
Harvard University Press. 2009), and Anna Stilz (Liberal Loyalty: Freedom, Obligation, and the State. Princeton
University Press. 2009; “Why Does the State Matter Morally?” in Varieties of Sovereignty and Citizenship. Eds. Sigal
Ben-Porath and Roger Smith. University of Pennsylvania Press. 2012. pp. 244-264.).
138 Ripstein, Force and Freedom, 224.
139 For simplicity’s sake, I will generally refer to people’s “innate right” as the primary concern of officials in their
decision-making and treat securing innate right as the purpose of the state. This is slightly imprecise, as within Kantian
political philosophy the concern of officials is establishing a system of rights, particularly acquired rights, which
secures the conditions for people’s innate right to equal freedom, but nothing in my argument turns on this
simplification.

86
that the fundamental normative value, the right to equal freedom, is able to generate concrete
political results.
This discretion requires Kantians to have a theory regarding how officials may exercise
their authority. While officials may appropriately use their discretion in carrying out their roles,
“[a]ny such judgment, discretion, or consideration of facts has to be exercised within the terms of
the mandate” so that an official may not act “in ways unrelated to his or her mandate.”140 These
constraints allow officials to exercise authority without making those subject to their decisions an
instrument of their private will. But what is it for an official to act in a way unrelated to their
mandate in exercising their discretion? My concern here is in cases in which an official’s mandate
does not require a unique course of action and so the official cannot decide what to do on the basis
of their mandate alone. In these cases, are there any further considerations—considerations not
required by innate right and the official’s mandate—that an official may use consistent with the
state constituting a public perspective? Are there any further considerations which, if an official
acted on them, would result in the state constituting a private perspective?
Intuitively, it seems that we should answer “yes” to both questions. That is, (i) there are
some further considerations officials may use and (ii) there are some further considerations
officials may not use when exercising their discretion in enacting laws and policies. The kinds of
considerations in question are those the officials use in justifying their decision. That is, officials
may, for instance, use considerations of efficiency, consistency, and fairness to select a policy, but
not considerations about their own likelihood to profit or what will do the most harm to their
political enemies. Considerations of the first sort are appropriate grounds for an official to exercise
authority—roughly speaking, they could, on their own, justify a decision given no countervailing
140 Ripstein, Force and Freedom, 202. Also Stilz, “Why Does the State Matter Morally?”, 254.

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considerations. On the other hand, considerations of the second sort are inappropriate grounds for
an official to exercise authority—even without countervailing considerations, these considerations
are not the sort that can justify a decision.
This paper addresses the prospects of Kantians arriving at this intuitive position. I begin in
Section [1] by describing the Kantian project, drawing out particular details. In Section [2], then I
use these features to raise a puzzle for how Kantians can answer “yes” to both questions. The
puzzle is that the part of the Kantian project which explains why a Kantian might accept (i)—that
there are some further considerations that officials may use—seems to undercut accepting (ii)—
that there are some further considerations that officials may not use—and vice versa. If so, then
the Kantian project fails to capture our intuitive thoughts about the considerations officials may
use. To respond to the puzzle, Kantians may either reject the intuition—by rejecting either (i) or
(ii)—or give an account that explains how they can accept both (i) and (ii). The remainder of the
paper explores these options.
In Section [3] I argue that the consequences of rejecting either (i) or (ii) are unacceptable.
Given this, there needs to be some explanation for why Kantians can accept both (i) and (ii). In
Section [4] I evaluate several explanations available to current Kantian political philosophy to
address the puzzle and argue that they do not resolve the puzzle. This puzzle thus points to the
need for further elaboration on the part of Kantians concerning what considerations officials may
use. Section [5] concludes.
141
141 Note, my concern is with Kantian political philosophy, not Kant’s political philosophy. This is not an exegesis of
Kant, but rather an engagement with some recent work that accepts core insights from Kant’s philosophy. For this
reason as well, not all positions that might be called “Kantian” are under consideration, rather only those that accept
the claims presented here are addressed.

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[1] Grounds of the Kantian state
The organizing principle of the Kantian state is people’s right to equal freedom. This right
consists in the “independence from being constrained by another’s choice, insofar as it can coexist
with the freedom of every other in accordance with a universal law.”142 That is, each person has
the right to set their own purposes and pursue those purposes with their own means.143 Thus, if I
wish to pursue the life of a puppeteer, so long as I am only using what is mine—what I have a right
to—no one else has a right to interfere with me. Central to this idea, then, is a distinction between
what is mine—what counts as my means—and what is not—what counts as someone else’s means.
For another to use my means without my permission is to constitute using what I am in control of
for their own purposes. It is to violate my independence from them.144
The innate right to equal freedom is thus the primary political value for Kantians,
representing people’s basic moral status as more than a means to be used by others. But there
appears to be a tension between people’s innate right and the state’s authority. After all, the exercise
of the state’s authority allows officials to use people’s means for various purposes without
requiring their permission, such as through taxes. This appears to conflict with people’s
independence insofar as it allows some people, officials, to have control over the means of other
142 Immanuel Kant, Metaphysics of Morals, 6:237. All references to Kant are from Practical Philosophy. Ed. and
Trans. Mary Gregor. Cambridge University Press. 1996. The citations use the Royal Prussian Academy of Sciences
pagination in the volume.
143 See Hodgson, “Kant on the Right to Freedom,” Pallikkathayil, “Deriving Morality from Politics,” Ripstein, Force
and Freedom, and Ariel Zylberman, “The Public Form of Law: Kant on the Second-Personal Constitution of
Freedom.” Kantian Review. Vol. 21. No.1. 2016. pp. 101-126. Cf. Kantian accounts of “freedom” as unimpeded
movement, e.g. Kyla Ebels-Duggan (“Moral Community: Escaping the State of Nature.” Philosophers’ Imprint. Vol.
9. No. 8. 1-19. 2009; “Review of Force and Freedom: Kant’s Legal and Political Philosophy.” Canadian Journal of
Philosophy. Vol. 41. No. 4. 2011 pp. 549-573).
144 For discussion see Ripstein, Force and Freedom, 42-50.

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people, the citizens. How, then, are we to understand the idea that people’s innate right to equal
freedom—their independence—is the organizing principle of the state?
The answer is that people’s independence cannot be realized without the existence of
certain kinds of authoritative institutions—those formed in the state.145 This is because people’s
independence requires that there is a system that determines people’s means—that there is some
system of rights instituted. According to Kantians there is no determinate “natural,” i.e. prepolitical, system of acquired rights, e.g. rights to property and contract, to determine people’s
means. Rather, there is a range of permissible systems of rights consistent with people’s
independence, with each system itself subject to indeterminacy in its application to specific
cases.146 The lack of a determinate system of rights thus presents a problem for people’s
independence in the pre-political condition. The state resolves the problem of indeterminacy of
rights by instituting a single system of rights for those under its authority. That is, the state’s
exercise of authority and imposition of constraints on the citizens is justified by the fact that it is
through the exercise of authority that people’s independence is possible. The constraints are a
means to secure people’s innate right through instituting a system of rights and so the state’s
exercise of authority is to treat the citizens as independent, rather than any other purpose. The
state’s exercise of authority is thus consistent with the citizen’s independence.
145 Pallikkathayail, “Deriving Morality from Politics”; “Neither Perfectionism nor Political Liberalism”; Ripstein,
Force and Freedom, ch. 6; Stilz, “Why Does the State Matter Morally?”
146 For versions of this argument, see Pallikkathayil (“Deriving Morality from Politics”), Ripstein (Force and
Freedom, ch. 6), Thomas Sinclair (“The Power of Public Positions: Official Roles in Kantian Legitimacy.” Oxford
Studies in Political Philosophy Vol. 4. Eds. David Sobel, Peter Vallentyne, and Steven Wall. Oxford: Oxford
University Press. 2018. pp. 28-52), and Stilz (Liberal Loyalty, ch. 2; “Why the state matters morally”). Kantians also
identify problems with adjudicating disputes between people and the unilateral enforcement of rights. While
important, I do not focus on those issues here.

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This is represented in the Kantian ideal of the original contract, which holds that “the
people, considered as a collective body, unite to rule themselves, considered severally” such that
the laws function as objects of possible choice for the citizens to secure their innate right to equal
freedom.147 This ideal constrains the possible structure of the state insofar as we cannot imagine
the citizens as creating “any binding arrangement that presupposes that others may treat [them] as
a mere means for pursuing their private purposes.”148 This constrains the state to act only to
institute a system of rights, rather than any private purposes of its own. For if it has any other
purpose, then in imposing constraints on the citizens it would use their means for a purpose other
than securing the conditions for innate right through instituting a system of rights, and so fail to
treat them as independent. This limits not only the substantive policies the state may enact—the
laws must be consistent with people’s innate right—but also the political procedures of the state—
the ways that the laws are made must be consistent with people’s innate right as well.
Furthermore, it is only through the state’s institutions that a system of rights can be imposed
on others. People’s innate right entails the “independence from being bound by others to more than
one can in turn bind them.”149 Each person is, by nature, symmetric in their authoritative
capacities—people have an innate right to equal freedom. No individual can have the authority to
institute a system of rights over others, as this would require that they exclude the authority of
those others to institute a system of rights over them. This would situate people as unequal with
respect to one another—one person’s judgment reigns over others creating an asymmetric system
of authority.
147 Ripstein, Force and Freedom, 199. See also Kant, Metaphysics of Morals, 6:315-316; “On the common saying,”
8:289-297.
148 Ripstein, Force and Freedom, 206.
149 Kant, Metaphysics of Morals, 6:237-238.

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Initially it seems like this problem is replicated with the state. After all, individuals occupy
the offices within the state and exercise authority over others. What is distinctive is that these
individuals do not gain this authority as a kind of natural claim, but rather through the public
procedures of the state. This maintains the symmetric situation of people insofar as when an
individual exercises the authority of the state, this is not based on their own claim to authority, but
rather as a component part of the state’s authority.150 The individual officials are simply the means
through which the state exercises its authority. While their judgments are privileged in terms of
determining the system of rights, this is not due to the nature of the officials as individuals. The
equality between individuals is maintained because no one is treated as having a unique claim to
exercise authority, rather people gain the claim to authority due to their role within the state, a role
that anyone might have.
This section highlights two features that work together in justifying the Kantian state’s
authority. The first is that securing people’s innate right to equal freedom through instituting a
system of rights functions as the sole legitimate purpose of the state. That is, state policies have to
be justified with reference to this purpose. The second is that the state allows those individuals
who occupy official roles to use their own judgment to exercise the state’s authority without
thereby undermining people’s independence. Equality is maintained even though only some
people’s judgments are authoritative and decisive. The first feature explains why the state is able
to act consistently with people’s innate right; the second feature explains why only the state is able
to do so. Together they establish the state as a morally necessary institution.
[2] Elaborating the Puzzle
150 Sinclair, “The Power of Public Positions.”

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The state is thus able to enact a system of rights consistent with people’s innate right
because the sole end of the state and state officials is to act on behalf of the citizens to secure innate
right. Officials are “not entitled to use public office to pursue private purposes, nor to make the
world better in ways unrelated to his or her mandate.”151 Rather they are constrained to the public
purpose of the state. To understand this we need to know what it means to act in a way “unrelated”
to one’s mandate.
My specific concern is with the use of certain considerations that officials take into account
when exercising their authority. For many decisions, Kantians hold that it is indeterminate what
officials ought to do—there are multiple permissible options consistent with an official’s mandate.
In such cases it is intuitively plausible that (i) there are some further considerations that officials
may use to select from among the permissible options—e.g. what is the most efficient way of
allocating resources—and (ii) that there are some further considerations that officials may not use
to select from among the permissible options—e.g. whether the official’s family stands to benefit
financially from a policy. Our question is whether Kantians can validate this intuitive position.
Kantians might try to account for (i) using the second feature of the Kantian state outlined
in Section [1]—that the state allows individual officials to use their own personal judgments when
exercising state authority without thereby undermining their equality with others. According to
this feature, when officials act on some “further considerations” they are exercising their personal
judgment. For Kantians, the state is specifically meant to allow officials to use their personal
judgments consistent with the equality of others. As such, so long as they are selecting from
otherwise permissible options—so long as the policies implemented secure the conditions for
people’s innate right to equal freedom—there is no threat that officials undermine the
151 Ripstein, Force and Freedom, 202.

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independence of the citizens. The problem is that this cannot explain (ii). For this explanation, it
seems, holds for any further consideration that an official uses so long as the official picks out an
otherwise permissible option. Let’s call this first position, which can explain (i) but not (ii), the
“unrestricted position”—insofar as it rejects (ii), it holds that there are no restrictions on the further
considerations that officials may use.
Alternatively, Kantians might try to account for (ii) using the first feature of the Kantian
state outlined in Section [1]—that the state’s sole legitimate purpose is to secure the conditions for
people’s innate right through instituting a system of rights. If the state’s sole purpose is to secure
people’s innate right, then further considerations—considerations that do not need to be taken into
account to secure innate right—should be excluded as they require that the state exercise its
authority for a purpose other than securing people’s innate right. The problem, though, is that this
cannot explain (i), how it is that there are any further considerations that officials may take into
account. For all further considerations concern something other than securing the conditions for
people’s innate right strictly speaking. Let’s call this second position, which can explain (ii) but
not (i), the “restricted position”—insofar as it rejects (i), it holds that, where an official’s mandate
does not select a unique option, there are no further considerations that an official may use to
decide what to do.
We thus get a puzzle: Both (i) and (ii) have intuitive support from central features of the
Kantian project, but their conjunction does not seem readily explicable within the Kantian
framework. This points to a tension in the Kantian project between the fact that the state is
supposed to exercise its powers solely to secure people’s innate right and the fact that innate right
is indeterminate.

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One way Kantians could respond is by accepting either the restricted or unrestricted
positions—and thus reject the need to give an account of what further considerations officials may
use, either by including or excluding all further considerations. I argue, in Section [3], that
Kantians should reject both the restricted and unrestricted positions and so should try to give an
account that explains both (i) and (ii).
Let’s call the position that accepts both (i) and (ii)—that officials may use some, but not
all possible further considerations—the “intermediate position.” To get the intermediate position
we need some criterion that explains why some considerations, but not others, get excluded that
fits within the Kantian position. The criterion, that is, should not simply provide a listing of
“related” and “unrelated” considerations, but an explanation of what it is for a consideration to be
related to an official’s mandate. The question for this paper is whether Kantians can provide such
a criterion, and I argue in Section [4] that current Kantian accounts fail to do so, and so the puzzle
remains.
[3] Rejecting the restricted and unrestricted positions
[3.1] Rejecting the unrestricted position
The unrestricted position has some intuitive appeal within Kantian philosophy. After all,
matters of right concern the external conduct of persons, not their virtue. Perhaps securing a
rightful condition does not concern the reasons for which certain laws and policies are adopted,
but only the substantive condition that results from their adoption. This position is suggested by
Ripstein’s comment that “[t]he distinction between an official’s acting within his or her mandate
and outside it does not depend on the official’s attitude: legal systems can operate effectively even
if many of their officials do not care about the law or justice, but only about doing their job and

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collecting their pay” because “[t]he possibility of people living together in a rightful condition
depends on external conduct, including external conduct within the three branches of government,
rather than on any person’s attitude towards that conduct.”152
These statements can be read to support the unrestricted position. For the considerations
that officials use in justifying their exercise of authority do not constitute any kind of “external
conduct”—after all, the same conduct may be done despite there being different reasons. If whether
a system of laws conforms to innate right is a matter of the external conduct, then whatever reasons
an official uses, the resulting system conforms to innate right so long as the official selects from
among permissible options. Officials are thus restricted from acting in certain ways, not from using
certain considerations. Thus, by putting the issue of innate right in terms of external conduct,
Kantians may allow that the reasons for an official’s decision are irrelevant.
This is not the best way to understand the Kantian position or Ripstein’s statements. After
all, an official is “prohibited from using his or her office for private purposes.”153 To distinguish
whether an office is being used for a private or public purpose, we cannot simply look at the
external conduct of an official, but rather we must also look at the reasons for their conduct. Take
the case of officials using considerations which deny that some individuals have an equal status to
others. That is, it is possible for officials to use considerations that deny that all humans have an
innate right to equal freedom while selecting policies consistent with securing people’s innate
right. For instance, it seems to be within the discretionary power of the state to provide public
funding for private sectarian education. In the history of the United States, anti-Catholic animus
152 Riptein, Force and Freedom, 193-194. Sinclair’s discussion tends in this direction at times (“The Power of Public
Positions”: 44-45).
153 Ripstein, Force and Freedom, 193.

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has led legislatures to ban the provision of public funding for private sectarian education.154 Part
of the reason behind this animus was the denial that Catholics deserved equal freedom—they were
treated as second-class citizens because of their religious views. If we adopt the unrestricted
position, then we would think that, when officials act on considerations that deny that people have
the innate right to equal freedom, it still counts as acting for a public purpose so long as they choose
an otherwise permissible option.
This is too implausible. It is perverse to suggest that an official acts on a public purpose
when they act on considerations that deny people’s innate right. It is unclear how officials in such
cases count as exercising their authority “on behalf” of others. If we understand the original
contract—the basis of determining the legitimate exercise of authority by the state—as among
people who recognize themselves as having the innate right to equal freedom, then we cannot
suppose that they could consent to a process that adopts the perspective that they lack their innate
right—that denies their humanity.155 But in these cases the actions of officials are predicated on
the fact that those citizens lack their innate right. This suggests that there must be some
considerations that ought to be excluded—at least those considerations inconsistent with innate
right.156
154 This has come up in recent history with respect to Montana’s constitutional prohibition on the public funding for
religious schools. See Espinoza v Montana Dept. of Revenue, 591 U.S. __ (2020).
155 This bears some similarity to Ripstein’s discussion of consenting to slavery, Force and Freedom, 133-144.
156 A defender of the unrestricted position may try to avoid this consequence by prohibiting officials from using
considerations that deny people’s equal status. As argued in the next paragraph, the unrestricted position would still
be problematic, as it allows officials to use the public office to pursue private goals. More to the point, once we
acknowledge that officials may not use considerations that deny people’s equal status, we need an explanation for why
those considerations may not be used and why others may be used. But this is to require that the unrestricted position
address the puzzle raised in Section [2] in a way that the unrestricted position is meant to avoid. That is, such a
modification is better understood as attempting to create an “intermediate” position rather than “unrestricted” position.

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The problem persists even if we consider cases where officials use considerations that
accept people’s equality. Suppose that an official is empowered to hire a company to repair public
roads, and their mandate provides them with criteria that both Company A and Company B satisfy.
Ex hypothesi, selecting either company satisfies the public purpose. Thus, on the unrestricted view,
so long as an official selects one of those companies, say Company A, they fulfill their mandate.
This conflicts with the Kantian claim that officials may not use their office for personal enrichment
as it allows the official to hire Company A because it will improve their personal stock portfolio
or give their brother a job. Acting for those reasons constitutes the use of public office for a private
purpose.157 This cannot be captured on the unrestricted position insofar as the explanation for why
it constitutes a private purpose is based on the considerations the official uses for selecting
Company A. The judgment that the official’s conduct constitutes using state power for a private
purpose is responsive to the fact that certain considerations are inappropriate grounds for
government action even if those considerations are consistent with the basic claims of people’s
rights.158
How do we reconcile this with the Kantian claim that whether an official acts within their
mandate does not depend on their attitude? Ripstein’s focus is on why officials do their job—
whether it is just for pay or patriotic fervor. Perhaps it is best to read these comments as suggesting
that the motives the official has for taking on their job—and more generally, the virtue of their
157 Ripstein, Force and Freedom, 193.
158 It is open to the Kantians to argue that cases like bribery only need to be prohibited because of the pragmatic
effects—that it makes officials less likely to act for the public good or that it undermines public confidence in the
officials. It is unclear to me whether this is consistent with the reasons Kantians generally give against bribery, namely,
that it is a defect in the form of lawgiving, not simply an imprudent policy. But this also misses the deeper issue:
Acting on certain considerations, such as one’s own profit, seems inconsistent with acting “on behalf” of others.

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character—do not matter for whether an official acts within their mandate.159 This can explain the
official’s decisions in terms of a justification that makes no reference to the motives the official
has for doing their job in the first place—at most these motives are simply a necessary condition
for them to be willing to fill the office they hold. Only the considerations that the official uses in
carrying out their job matter for determining whether the official is acting for a private or public
purpose. The fact that the official’s attitude towards their job or the general virtue of their character
is irrelevant for determining whether their conduct is public or private does not mean that the
considerations they use to execute their office are similarly irrelevant.160
[3.2] Rejecting the restricted position
The appeal of the restricted position—the position that officials may use no further
considerations beyond those required by their mandate—comes from the idea that once we reject
the unrestricted position and admit that officials acting on some further considerations undermines
the state’s status as representing a public perspective, there is no general stopping point. All further
considerations, after all, are considerations that are not directly about instituting a system of rights
to secure the conditions for people’s innate right to equal freedom. The use of such considerations
constitutes an official exercising state authority for some other purpose and so seems to constitute
159 Of course, an official’s private motivations could be evidence concerning the kinds of considerations that the
official is using. If, for instance, we know that an official harbors racist views, then this is evidence that they may be
using improper considerations. But this is an evidential relationship, not a constitutive one.
160 This point holds even if we accept Kant’s contention that the judgments and motives of officials are not subject to
review by citizens (see, e.g., “On the common saying,” 8:299-300; 8:304). For even if citizens lack the right to review
the judgments of an official, it still remains the case that officials need to be able to determine whether the
considerations they are using are within their mandate. The argument here, that is, concerns what considerations
officials may use and not who has the authority to judge officials on the basis of the considerations they use.

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using the state for a non-public purpose. We must then ask why officials should be permitted to
use such further considerations.
Given the amount of indeterminacy and discretion given to officials, excluding the use of
further considerations would result in many cases where officials lack sufficient grounds for
selecting one option rather than another. For, ex hypothesi, considerations about innate right do not
determine a unique option for what officials must do, and so any considerations that do narrow
down the decision must be considerations that are not, strictly speaking, required by innate right.
For if they were required, this would contradict the claim that innate right is indeterminate between
the various options.161 But decisions between multiple options could still be made through the use
of various lottocratic procedures—such as picking an option out of a hat. Lottocratic procedures
are not outside the realm of possibility in terms of political proposals and they may be appropriate
at certain points in time as a response to indeterminacy.162 Our question is whether Kantians should
require that states resolve indeterminacies through something like lottocratic procedures—as the
restricted position requires such procedures to avoid paralysis.
Given the domain of indeterminacy, requiring lottocratic procedures seems to treat people’s
interests in implausible ways. For Kantians, the purpose of the state is to secure a “rightful
condition,” which is not contingent on the “happiness of its citizens or the gross national
161 Perhaps the Kantian project is “inconclusive” rather than “indeterminate.” For some discussion on the difference
between “inconclusive” and “indeterminate” decisions, see Gerald Gaus, Justificatory Liberalism. Oxford University
Press. 1996: ch. 11. Even so, this would not alter the fact that an official’s decision would reflect some ordering of the
values involved that is not required by innate right.
162 Lottocracy here is proposed as a way to pick between options rather than officials. It thus differs from Alexander
Guerrero’s suggestion to deal with the failings of representative democratic institutions by selecting legislators by
lottery (“Against Elections: The Lottocratic Alternative.” Philosophy and Public Affairs. Vol. 42. No. 2. 2014. pp.
135-178.). Rather, the proposal is similar to what some propose as a solution to indeterminacy in public reason; see
Andrew Williams (“The Alleged Incompleteness of Public Reason.” Res Publica. No. 6. 2000. pp. 199-211.) and
Micah Schwartzman (“The Completeness of Public Reason.” Politics, Philosophy, and Economics. Vol. 3. No. 2.
2004. pp. 191-220.).

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product.”163 That is, whether a condition is rightful does not depend on whether that condition
increases the citizen’s well-being or achieves other valuable ends in comparison to available
alternatives. There is thus a wide range of policy options that enact a rightful condition which
provide varying levels of well-being to the citizens. Lottocratic procedures that select from among
the range of options would thus give equal chances to those options independent of their effects
on well-being or other valuable ends outside some minimal threshold necessary for the condition
to be consistent with innate right.
This seems implausible as a requirement. That is, it seems like people’s well-being and
other valuable ends, while certainly not everything, are at least relevant for officials to take into
account when choosing options. The restricted position, by excluding all further considerations
and relying on lottocratic procedures to make decisions, would require officials to treat such
considerations as if they meant nothing. This is particularly troubling because there is no general
mechanism for people to respond to the existence of sub-optimal laws from a lottocratic
procedure—there is no reasoning with a chance procedure. And so people are implausibly
disconnected from the political processes of the state without the recourse to influence the state’s
163 Ripstein, Force and Freedom, 196. See also Hodgson, “Kant on the Right to Freedom,” 794-795; Kant: “what is
under discussion here is not the happiness that a subject may expect from the institution or administration of a
commonwealth but above all merely the right that is to be secured for each by means of it” (“On the common saying,”
8:298; also Metaphysics of Morals, 6:318). While Kantians generally hold that there are some minimal material
conditions necessary for innate right, these do not require that the state ensure a high level of well-being, but rather
avoid putting people in a condition of dependency. See Kantian responses to poverty such as Ripstein (Force and
Freedom, ch. 9) and Ernest Weinrib (Corrective Justice. Oxford University Press. 2012: ch. 8).

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decisions.164 The well-being of the citizens and other valuable ends should be able to count for
something in political decision-making, even if they are not the primary concern.165
This does not show that a lottocratic system is inconsistent with the Kantian position—that
Kantians cannot adopt a lottocratic system. I do think it shows that it is implausible to suggest that
a lottocratic system is required—that citizens can be required to adopt a system where their
material, and other, interests have no influence on the decisions made.166 But if a lottocratic system
is not required, then the restricted position cannot be true. We should thus think that the Kantian
position is thus plausible only if it can provide some kind of standard that distinguishes between
what further considerations are “public” as opposed to “private.”
[4] Rejecting current Kantian solutions
[4.1] Public grounds of justification?
164 Kantians generally hold that there is some requirement of allowing political participation among the citizens. For
a discussion in the context of Kant’s views, see Christoph Hanisch, “Kant on Democracy.” Kant-Studien. Vol. 107.
No. 1. 2016. pp. 64-88. For a more contemporary application, see Christian Rostbøll, “Kant, Freedom as
Independence, and Democracy.” The Journal of Politics. Vol. 78. No. 3. 2016. pp. 792-805. See also Ripstein, Force
and Freedom, 202-204 and Stilz, “Why Does the State Matter Morally?” 255-256.
165 What of Kant’s argument that the state cannot rightfully aim at the happiness of citizens because it would be
objectionably paternalistic (“On the common saying,” 8:290-291)? It is important to note that Kant’s argument is not
that the state cannot try to promote happiness or well-being—he holds that the supreme power may make “laws that
are directed chiefly to the happiness” of citizens (“On the common saying,” 8:298-299)—but rather that the state
cannot be “established” on the principle of promoting happiness. That is, it cannot take happiness as its purpose in
such a way that trumps securing the conditions for innate right. This is consistent with the state taking the well-being
of citizens into account when securing the conditions for people’s innate right.
166 Does the fact that we care about what decision gets made show that the decision is actually not indeterminate? This
does not follow. For it might be true that, from the perspective of people’s innate right, the matter is indeterminate,
but this is consistent with holding that some options are preferred to others for other reasons. Kantians do not assume
that innate right is the whole of morality, just that it is the basis of political morality. See Thomas Pogge (“Is Kant’s
Rechtslehre Comprehensive?” The Southern Journal of Philosophy. Vol. 36. pp. 1997. 161-187.), Allen Wood (“The
Final Form of Kant’s Practical Philosophy.” in Kant’s Metaphysics of Morals: Interpretative Essays. Ed. Mark
Timmons. Oxford University Press. 2002. pp. 1-22.), and Hodgson (“The Kantian Right to Freedom,” pp. 802-804).
Moreover, the point is not that it is wrong for the state to choose a sub-optimal option, but that it is too much to require
people to put up with it without having some direct way of influencing the choice.

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Section [3] argues that Kantians should endorse the intermediate position. Given the puzzle
outlined in Section [2], this requires that Kantians provide some criterion that determines when an
official acting on further considerations constitutes a public exercise of authority. One way that
Kantians might provide a criterion is by holding that officials must act on considerations that are
sufficiently “public.” This position is proposed by Ripstein. He holds that “[t]he only thing
[consideration] that is ruled out is organizing the state around private purposes” and the test for
this is that “it be possible to give public grounds of justification for such activities, that is, to relate
them to the maintenance of a rightful condition.”167
In itself this statement is consistent with endorsing the unrestricted position. The
unrestricted position holds that officials select from among the permissible options, and so officials
can always give the fact that their decision is within the range of permissible options as the public
grounds of justification for their decision.168 Given our rejection of the unrestricted position in
Section [3.1], Ripstein should mean something stronger than the fact that officials can show that
the activities in question—the laws and policies implemented—are related to the maintenance of
a rightful condition. Perhaps the idea is that some considerations are public such that they
constitute a distinctly public form of justification.
To get a sense of what this distinct form of justification might be, we can look to Ripstein’s
discussion of the provision of public roads. There he discusses various considerations appropriate
167 Ripstein, Force and Freedom, 223.
168 Officials may also give considerations based on innate right to prefer one option over another, especially if, e.g.,
the options are incommensurable in some way. It would remain the case, though, that the officials cannot give
conclusive public grounds of justification for their decision, and so their preference for one option over another would
still reflect some judgment that is not required by innate right. This simply follows from the fact that innate right is
indeterminate over various options.

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for the state to use such as efficiency, consistency, and fairness.169 In each case Ripstein discusses
how the failure to take these considerations into account can cause officials to violate people’s
innate right—thus, efficiency is important so as to not overtax citizens, which constitutes taking
what is theirs without furthering a public purpose.170 This suggests that those considerations which
constitute a “public form of justification” are those that determine whether some law or policy is
consistent with people’s innate right. If so, then Ripstein’s account would be subject to the
problems of Section [3.2], for we should anticipate that insofar as people’s innate right does not
pick out a unique set of options, considerations that are necessary for being consistent with innate
right would also not pick out a unique set of options.
But Ripstein discusses some additional considerations that officials may take into account,
such as “judgments about what people will find more pleasant or convenient, or what will make
citizens find particular rules sensible or fair.”171 The failure to take these kinds of considerations
into account is not inconsistent with innate right—after all, whether the requirements of people’s
innate rights are satisfied is independent of any particular private purposes they have such as their
own convenience. This suggests that Ripstein’s public justification allows more than the restricted
position, but it does not explain why officials can use these kinds of considerations or how to
evaluate what considerations may be used. After all, both the official’s own personal gain and the
general public’s “convenience” are equally irrelevant from the perspective of people’s innate right.
Why, then, is the official’s use of the former but not the latter equal to using the state for a private
purpose? Ripstein’s answer is unclear to me—he provides intuitive judgments, but no method for
169 Ripstein, Force and Freedom, 254-256.
170 Ripstein, Force and Freedom, 254; 258-259.
171 Ripstein, Force and Freedom, 256.

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tying the intuitions to one another to develop a general account of what considerations are
appropriate for officials to use.
The problem that emerges is that even if we accept these intuitive judgments, it is unclear
how these judgments should extend to other considerations. Perhaps we can form intuitive
judgments that considerations like fairness or convenience should be included, and considerations
like racial superiority should be excluded, but what about considerations about the public’s
salvation? Their cultural, aesthetic, or moral improvement? What about considerations about what
kinds of activities or jobs are degrading? It is not obvious to me whether the religious or
perfectionist considerations in these cases will count as using the state for a private purpose—at
least, it is not as obvious as with considerations of fairness or considerations of racial superiority.
The issue is that without some explanation behind our intuitive judgments, there is no way to
resolve disagreements about our intuitions in these difficult cases. Some criterion is needed to
guide our judgments as different kinds of considerations arise.
This does not show that no criterion could be supplied, but rather that it is necessary to
move beyond intuitive judgments to provide a criterion for when officials count as acting for a
public or private purpose. This demand for a criterion is not a demand for a theory that “provides
a template for every detail of social life, or mandates a priori a unique resolution.”172 Rather, it is
a demand for a theory that gives us a means to evaluate what considerations are appropriate. This
leaves open the possibility that officials will need to exercise their own judgment in deciding cases.
The central concern is that the public purpose alone does not give a description of how to relate
further considerations to the public purpose which we can apply to considerations as they arise.
172 Ripstein, Force and Freedom, 255.

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[4.2] Public procedures?
So far the discussion of what considerations officials may use has treated the state primarily
in terms of the officials who compose it. Perhaps this is a mistake. After all, the Kantian state is
thought of as a system of institutions designed to resolve indeterminacies concerning people’s
rights. We might think, with Pallikkathayil, that “[w]here there is enduring indeterminacy
regarding our rights, we must choose ways of specifying those rights” and then we look “to the
results of these procedures to settle the remaining political questions.”173 The idea is that once we
set up procedures, officials simply need to carry out the results of the procedures and so we avoid
questions of what considerations officials may act on.
Appealing to procedures does not avoid our puzzle. The procedures of a state are not
automatic. They take the actions of various officials—legislators, judges, administrators, and even
voters—as inputs into the procedure to generate the results—laws and policies. These officials act
on the basis of various considerations, and so the inputs to the procedure are partially determined
by what considerations officials may act on. We may thus ask whether the procedures we use to
settle political questions impose constraints on what considerations officials may use when acting
as inputs into the procedure.
Given the argument in Section [3.1], the procedures of the state must exclude some further
considerations from the range that officials may use. It is not enough to simply have procedures
that pick out permissible laws or policies, as that would allow officials to implement policies on
the basis of private gain or on the denial of other people’s rights. We thus cannot just look to the
results of a state’s procedures to resolve questions of rights without some constraints on what
considerations officials may use. Further, given the argument in Section [3.2], it is also permissible
173 Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 182-183.

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for these procedures to include some further considerations in the range that officials may use. It
follows that, in determining the permissible procedures for the state, we must determine what
further considerations may be included or excluded—we cannot simply allow officials to act on
just any consideration and we cannot require that officials not act on any further considerations.
This is just to say that we must first address our puzzle as part of setting up the procedures
of the state—to determine whether the procedures are compatible with the state representing a
public perspective, it is necessary to know what considerations these procedures may allow
officials to use. Once we have these procedures in place we can appeal to the results of the
procedures to resolve indeterminacies in the implementation of rights within the state. But insofar
as the procedures require the exercise of discretionary judgment by officials on the basis of certain
considerations, we must resolve the puzzle of what considerations officials may use when
exercising their discretionary judgment.
[4.3] Adjudicating disputes?
Another suggestion to determine what considerations officials may use is based on their
role in adjudicating disputes between persons. Innate right requires officials to be sensitive to how
they impact various people with their laws. The Kantian state thus has the “aim to adjudicate
between people’s projects” and so what considerations officials may use will “turn on the ways in
which people’s projects actually conflict”—for instance, whether to have noise ordinances
restricting when people can play loud music depends on whether anyone is bothered by loud
noises.174 There is a “presumption in favor of an equal division of [the state’s] burdens” on the
174 Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 183fn19; 183.

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citizens that may provide a standard for determining what considerations are “public” or
“private.”175
The idea is that officials look to the general public’s interests and projects and adjudicate
between them to produce an equitable distribution of burdens on the citizens. What distinguishes
when an official’s use of considerations is private from when it is public, then, is whether the
official is taking into account the interests of citizens in the society in accordance with the
appropriate distributive scheme. In a sense, this solution reduces indeterminacy by providing some
criterion for officials to follow. Once we have an account of the different projects of the citizens,
the interests in play, and the range of policies that could otherwise be implemented, officials would
simply have to examine how these factors add up with respect to some principle of distribution.
We thus get a clear accounting of what considerations are appropriate for officials to use, and why
those constitute a public perspective.
Unfortunately, this solution is not available within the Kantian framework. The solution
relies on Kantians having some particular distributive scheme and a particular mechanism for
weighing between different projects or interests. Neither feature is present within the Kantian
framework. To begin with, Kantians do not require that the state adopt any particular distributive
standard—e.g. an egalitarian, prioritarian, or sufficientarian standard—to adjudicate competing
claims. For then we would have to “see legal rules as trying to match something that is completely
determinate without any reference to legal institutions”—the particular distributive scheme of the
burdens of the state—while the “Kantian sees legal rules as making determinate something that is
morally binding but by itself partially indeterminate.”176 What is an “equitable distribution” within
175 Ripstein, Force and Freedom, 258. See also Stilz, “Why Does the State Matter Morally?” 255.
176 Ripstein, Force and Freedom, 224.

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a Kantian scheme, then, is itself indeterminate.177 Officials have to decide on a particular
distributive scheme, and so the puzzle reappears: What considerations are appropriate for officials
to use in picking out an “equitable distribution” to strive for?
Even if there is a particular distributive scheme that Kantians may adopt, we still need to
be able to weigh the various projects of citizens against one another. A person’s project of personal
salvation has to be compared against another person’s project of birdwatching. Within the Kantian
framework there does not seem to be any particular answer to what the common currency is in
weighing a project of salvation against a project of birdwatching. For there may be no common
perspective between the birdwatcher and the theist to compare their projects as they may fail to
share a common description of what they are doing in each case. Are they comparable as passion
projects each person desires to act on? Or does some special concern attach to the project of
salvation? The Kantian ideal of independence does not seem to give any reason to validate one
person’s understanding of their activity with the other’s—they seem free to set and pursue their
own purposes whether we understand both as comparable passion projects or attach some special
significance to the project of salvation. It is thus unclear whether people’s innate right specifies
how projects should be weighed against one another insofar as there is no required neutral
perspective between them that we can adopt.
Thus, the problem with using the notion of an “equitable distribution” as a criterion for
distinguishing when an official’s use of considerations is “private” as opposed to “public” is that
what counts as an equitable distribution is indeterminate for Kantians. Relying on distributive
177 See Michael Nance and Jeppe von Platz, “From Justice to Fairness: Does Kant’s Doctrine of Right Imply a Theory
of Distributive Justice?” in Kant on Freedom and Spontaneity. Ed. Kate Moran. Cambridge: Cambridge University
Press. 2018. pp. 250-268. This is compatible with acknowledging that the Kantian conception of the person as free
and equal may entail some minimal distributive constraints, e.g. that certain forms of poverty threaten a person’s moral
status (see fn.163). Such distributive constraints point to conditions that the Kantian state is to avoid, leaving open a
wide range of distributive schemes that successfully avoid these conditions.

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criteria thus requires that officials appeal to further considerations to determine the appropriate
distributive scheme. Given the nature of the puzzle, this is inadequate as we still lack criteria for
determining what further considerations may be used to determine the appropriate distributive
scheme. As in Section [4.2], it is necessary to first resolve the puzzle so that we can use the further
considerations to pick out a distributive scheme, which may then guide official decisions.
[4.4] Public reason?
One final possibility is for Kantians to develop what is meant by “public grounds of
justification” for their theory. One intuitive way for developing what Kantians mean by the “public
grounds of justification” would be to appeal to a theory of “public reasons,” in particular political
liberalism’s theory of public reason.178 Political liberalism, after all, distinguishes between reasons
that are “public” from those that are “private,” and so seeks to make the right kind of distinction
that Kantians need to resolve the puzzle posed here. Perhaps Kantians could develop some kind of
“Kantian public reason” as a way of addressing the puzzle based on the resources provided by
political liberalism.179
What might this “Kantian public reason” look like? Let’s start with a basic theory of public
reason. For this purpose I will use (a simplified version of) Rawls’s theory.180 Rawls starts with
178 The primary account of political liberalism is from John Rawls (Political Liberalism. Expanded Edition. New York:
Columbia University Press. 2005). Other accounts include Andrew Lister (Public Reason and Political Community.
London: Bloomsbury. 2013), Jonathan Quong (Liberalism without Perfection. Oxford: Oxford University Press.
2011), and Paul Weithman (Why Political Liberalism? On John Rawls’s Political Turn. Oxford: Oxford University
Press. 2010).
179 While Kantians generally do not adopt a “public reason” requirement (see, e.g., Pallikkathayil, “Neither
Perfectionism nor Political Liberalism”), some Kantians identify significant similarities between the Kantian position
and political liberalism; see Rainer Forst (“Political Liberalism: A Kantian View.” Ethics. Vol. 128. No. 1. 2017. pp.
123-144) and Hodgson (“Kant on the Right to Freedom: A Defense,” 802-804).
180 Rawls, Political Liberalism, Lecture VI and “The Idea of Public Reason Revisited” in Political Liberalism.
Expanded Edition. New York: Columbia University Press. 2000. pp. 440-490.

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two central normative assumptions: a conception of society as a system of fair cooperation between
free and equal persons for mutual benefit and a conception of citizens within the society as being
free and equal and possessing a sense of justice and the power to form and pursue a conception of
the good. From these two conceptions Rawls generates a conception of “reasonable” citizens and
“reasonable” doctrines based on those who can accept these conceptions of society and citizens.
Public reasons, then, are the reasons acceptable to all reasonable persons where a reason counts as
“acceptable” if a reasonable citizen could accept it while still holding their reasonable doctrine—
what we may call the “Reciprocity Constraint.”181 The general structure for public reason theories
thus relies on (i) a normative conception of society and (ii) a normative conception of citizens that
together generate the concept of a reasonable citizen. Public reason theories then derive what
reasons count as public based on (iii) a conception of what reasons count as acceptable to
reasonable citizens, which for political liberals is given by the Reciprocity Constraint.
To get a Kantian theory of public reason we need each element. The first two elements—
the conception of citizens and society—can be found in the discussion of the Kantian justification
of the state in Section [1]. That is, Kantian political philosophy begins with the assumption that
citizens are mutually independent persons—people with the innate right to equal freedom and the
relevant capacities needed to exercise that right. Political society is then justified as a kind of
association that is necessary to secure the conditions for people’s innate right to equal freedom—
as defined through the Kantian conception of the original contract. Following the structure of
181 Rawls, “The Idea of Public Reason Revisited,” 446. See also Jonathan Quong, “On the Idea of Public Reason.” in
A Companion to Rawls. Eds. Mandle, Jon and Reidy, David. John Wiley & Sons. 2014. pp. 265-280. Hodgson takes
the Kantian idea that “any principle regulating the use of force depends for its justification on whether it is one that
all rational agents must accept” to imply something similar to the Reciprocity Constraint (“Kant on the Right to
Freedom: A Defense,” 802).

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public reason from before, we can thus understand “reasonable” citizens in terms of those who
accept the basic Kantian premise and hold doctrines consistent with that premise.
The appeal to political liberalism then comes in to supply the third element—an account of
what considerations count as acceptable—with the Reciprocity Constraint. As before, the
Reciprocity Constraint holds that a consideration counts as “public” if all reasonable citizens can
affirm the reason while still holding their reasonable doctrine. This requires that any reasonable
citizen could non-mistakenly accept the considerations proposed as “true” without undermining
their beliefs in their own reasonable doctrines. Typical examples of considerations that fail to meet
this standard for political liberals include people’s moral, religious, and philosophical
considerations. The Catholic cannot accept the atheist’s claim that God does not exist in a way
consistent with their reasonable Catholicism, and so the claim that God does not exist cannot count
as a public reason. Does the Reciprocity Constraint work for Kantians to generate the intermediate
position, given their conception of a reasonable citizen?
Given the Kantian conception of the citizen and society, reasonable citizens are only
guaranteed to accept people’s status as mutually independent beings with the innate right to equal
freedom and that society is meant to secure the conditions for people’s innate right. Outside of
considerations required by innate right, all further considerations are accidental to people’s innate
right, and so there are no assumptions about what further commitments reasonable citizens have.182
And so citizens may reasonably dissent from whatever further considerations might be introduced.
That is, if reasons are only “public” if all reasonable people can accept them, then the only reasons
182 Recall from Section [1] that the idea of people’s independence is that people are to set and pursue their own
purposes. This does not assume any particular content for these purposes, but rather concerns the relationship between
persons and who is subject to whom. See, e.g., Hodgson (“Kant on the Right to Freedom: A Defense”), Ripstein
(Force and Freedom, 14-17; ch. 2) and Pallikkathayil (“Neither Perfectionism nor Political Liberalism”).

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that turn out to be public for Kantians are those required by people’s innate right to equal
freedom—i.e. the restricted position. Adopting the Reciprocity Constraint would thus push
Kantians into some form of the restricted position because only considerations required by innate
right cannot be subject to reasonable dissent, and so the move to a public reason account replicates
the problems from Section [3.2].
The differentiating factor between political liberalism and Kantian political philosophy is
the conception of citizens and society that each endorses. Political liberals have a “thicker”
conception of citizens and society that is drawn from the political culture of liberal democracies.183
Kantians have a “thinner” conception that relies on the single central normative concern of people’s
innate right to equal freedom. There is thus less antecedent agreement that allows considerations
to pass the Reciprocity Constraint for Kantian political philosophy, which pushes Kantians back
into the problems of the restricted position.
[5] Concluding remarks
The puzzle raised here points to the need for further elaboration on the part of Kantians for
how they might attempt to reconcile the indeterminacy that is central to the normative foundations
of the state and the need to limit official discretion concerning the considerations they may act on.
The difficulties raised in Section [4] do not show that Kantians cannot resolve the puzzle, just that
more work needs to be done. This chapter establishes some basic issues with attempting to resolve
the Indeterminacy Worry through appealing to the discretionary capacities of officials. Any
solution that wishes to address the Indeterminacy Worry through appealing to such discretionary
capacities, then, will have to explain how it can avoid these issues while remaining consistent with
183 Rawls, Political Liberalism, Lecture I.

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the aspirations of the Kantian project. I will undertake this task in Chapter [5]. Prior to that, I want
to address an alternative method for addressing the Indeterminacy Worry.

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Chapter 4: A path not taken: A perfectionist constraint
Introduction
Chapter [3] ended with the following conclusion: Given the Indeterminacy Worry, Kantians
need, and currently lack, a plausible account of what kinds of considerations are permissible to use
outside of those considerations which are required by people’s right to equal freedom—what
further considerations are permissible for officials and citizens to use in their political
deliberations. Moreover, Kantians need an account of why these further considerations are
permissible to use in political deliberations that is consistent with the overall motivations of the
Kantian position. Absent this, it seems that the right to equal freedom cannot function as the
fundamental normative political concept that guides the state.
In this chapter I address one potential solution that Kantians should reject—that Kantians
should resolve the Indeterminacy Worry by including some other fundamental normative political
concept in addition to the right to equal freedom. In particular, I will focus on a version of this
solution that I will call the perfectionist constraint. The perfectionist constraint holds that when
deciding between otherwise legitimate options as determined by people’s right to equal freedom,
the state must act in accordance with some particular set of considerations—those identified by
the true theory of human flourishing.184 The range of legitimate state conduct, then, is further
narrowed down by the true set of considerations about human flourishing that apply to the political
situation. This provides a set of further considerations that officials and citizens can use to guide
184 While I will focus on the “perfectionist constraint” as interpreted as applying to the “true theory of flourishing” in
this chapter, this is meant simply to allow the chapter to remain focused. That is, my argument is generalizable for
any constraint and not just about whether appealing to flourishing as a constraint. I will discuss the generalization of
this point in Section [5].

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their conduct that extends beyond people’s right to equal freedom, and so has the possibility of
resolving issues of indeterminacy, without allow obviously impermissible considerations to be
used. It also has some independent intuitive weight: For many political philosophers, it seems
appropriate that the flourishing of the citizens is a matter for the state to take into account.185
I think the perfectionist constraint represents a prima facie attractive solution to the
Indeterminacy Worry, and so to the problem raised in Chapter [3]. It also, I will argue, is not subject
to common complaints that Kantians raise for perfectionist positions. The perfectionist constraint,
then, seems like a possible contender for addressing the problem of indeterminacy within
contemporary Kantian political philosophy. At the same time, accepting the perfectionist constraint
seems to be deeply in tension with some of the fundamental features of the Kantian project—in
particular, their commitment to the idea that the purpose of the state is solely to create conditions
for people to lead lives of mutual independence. The perfectionist constraint seems to make the
Kantian state a perfectionist state, giving it some goal beyond securing people’s mutual
independence.
For this reason, it is instructive to explore why Kantians should reject this constraint and
so establish further constraints on potential solutions to the Indeterminacy Problem. Here I will
begin by elaborating the perfectionist in more detail in Section [1] and then argue in Section [2]
that some common Kantian arguments against perfectionist fail to explain why they may reject the
perfectionist constraint. I will then provide my own account of why Kantians should reject the
185 This is a position held by “perfectionists” such as Joseph Raz (The Morality of Freedom, Oxford University Press.
1988), Steven Wall (Liberalism, Perfectionism, and Restraint. Cambridge University Press. 1998); George Sher
(Beyond Neutrality: Perfectionism and Politics. Cambridge University Press. 1997); Richard Arneson (“Perfectionism
and Politics.” Ethics. Vol. 111. No. 1. 2000. pp. 37-63. “Liberal Neutrality on the Good: An Autopsy.” in
Perfectionism and Neutrality: Essays in Liberal Theory. Eds. George Klosko and Steven Wall. Rowman and
Littlefield. 2003. Ch. 18); Collis Tahzib (A Perfectionist Theory of Justice. Oxford University Press. 2022); Alexandra
Cuoto (Liberal Perfectionism: The Reasons that Goodness Gives. Boston: De Gruyter. 2014).

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perfectionist constraint in Sections [3] and [4]. I conclude in Section [5] with a discussion of the
broader implications of the argument against the perfectionist constraint.
[1] Outline and motivation for the perfectionist constraint
[1.1] Outline of the perfectionist constraint
Let us begin with an explicit definition of the perfectionist constraint:
Perfectionist Constraint: The state may legitimately adopt and implement a policy only if
(a) the policy is justified as part of securing people’s right to equal freedom and (b) the
policy best satisfies (or perhaps “adequately” or “reasonably” satisfies) some set of
perfectionist considerations.
A few clarificatory notes on the perfectionist constraint. First, the constraint imposes a condition
on legitimate state actions—what legal structures and political institutions a state may permissibly
adopt. There are, though, two different kinds of conditions on legitimate state action, what I will
call basic and non-basic conditions. Basic conditions on legitimate state action are conditions on
legitimate state action that are imposed on all states as a condition of the state’s legitimacy. This
may be contrasted with non-basic conditions on state legitimacy which are conditions on legitimate
state action that are the state adopts or imposes on itself—the laws and norms governing legitimacy
that the state has adopted or developed or the constraints on the state due to the historical
interactions the state has had with others.
An example of non-basic conditions on legitimacy would be the political procedures of the
state—for instance, whether the Supreme Court has original jurisdiction for federal criminal cases
(it does not). This is a contingent feature of how the state is structured which constrains the
legitimate exercise of authority. The Supreme Court, and so the state, acts illegitimately if it
exercises original jurisdiction over federal criminal cases. But the state could be structured
otherwise—if the constitution was amended or written elsewise. By contrast, the Kantian

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requirement that the state adopt a public perspective is a basic condition on legitimacy—it is a
constraint that applies to all states and limits what state actions are legitimate.
The perfectionist constraint, as understood here, is a basic condition on state legitimacy. It
is not a constraint that certain states adopt as a kind of policy, but rather is supposed to function as
a constraint prior to any policy-making decisions on the part of the state. It is meant to determine
the domain of permissible state conduct for any state, rather than within a particular state dependent
on its political institutions.
A second clarificatory note is that within the perfectionist constraint, the satisfaction of
(a)—that a policy is justified as part of securing people’s right to equal freedom—is lexically prior
to the satisfaction of (b)—that a policy best satisfies some perfectionist considerations. That is,
perfectionist considerations are used to select from among the policy options that are justified as
part of securing people’s right to equal freedom, and do not legitimate an otherwise unjustified
option. This follows from the fact that we are operating, from Chapter [2], with a Kantian
justification for state authority, and not a perfectionist justification, and so laws and policies that
do not act to secure people’s right to equal freedom are not justified.
A third, and final, clarificatory note concerns what I mean by “perfectionist
considerations.”186 Perfectionist considerations are considerations about what will contribute to
human flourishing. As a general concept, flourishing consists in living a life that has intrinsic value.
Different perfectionist theories provide different accounts of what it is for a life to have intrinsic
value—whether it is in making autonomous choices that guide one’s life, developing and
186 In a previous version of this chapter I had defined “perfectionist considerations” in a structural way such that any
“further consideration” constituted a perfectionist consideration. For expository purposes it has been adjusted to
address the full range of possible “further considerations” in Section [5] through an application of the argument
developed in Sections [3] and [4].

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exercising certain capacities, possessing various excellences, and so forth.187 One commonality
between these views is that claims about intrinsically valuable lives have some objective
component—some component that does not depend on an agent’s attitude toward their own life
and its value.188 Another commonality between these views is that flourishing concerns something
more than just people’s right to equal freedom. That is, perfectionist considerations are a species
of further considerations in the sense described in Chapter [3].189
For my purposes here, I do not assume that the perfectionist constraint must adopt any
particular conception of flourishing. That is, my argument should operate no matter what particular
conception of flourishing is used to determine the set of perfectionist considerations. Of course,
only some conceptions of flourishing are plausible candidates for a perfectionist constraint—
presumably, for example, they must be able to recognize people’s right to equal freedom. But
nothing in my argument is intended to rely on a particular assumption about what conception of
flourishing is used.
With these clarifications out of the way, we can see how the perfectionist constraint is
supposed to operate. We first identify what range of options—institutional forms, laws, or
187 For autonomous choice, see Raz (Morality of Freedom); Wall (Liberalism, Perfectionism, and Restraint); for
capacities, see Sher (Beyond Neutrality); for excellences, see Tahzib (A Perfectionist Theory of Justice). This is not
an exhaustive list of perfectionist conceptions of flourishing, but it does represent a number of positions that have
presented perfectionist theories compatible with a liberal political system.
188 See Steven Wall, “Perfectionism in Politics.” in Contemporary Debates in Political Philosophy. Eds. Thomas
Christiano and John Christman. Blackwell. 2009. pp. 99-117. Perfectionists might also hold that there is a subjective
component to determining the intrinsic value of an agent’s life in addition to an objective component, e.g. the agent
has to value the kinds of experiences and abilities that they come into contact with. My discussion in this article is
compatible with perfectionism having such a subjective component along with an objective component. See Steven
Wall (“Subjectivist Perfectionism.” The American Journal of Jurisprudence. Vol. 63. No. 1. 2018. pp. 109-131) for
some discussion of how a subjectivist perfectionist theory might operate.
189 I thank Rafeeq Hasan for pointing out (in a different context) that it is possible for someone to hold that complying
with people’s right to equal freedom might itself be sufficient to count as flourishing (or as a component of
flourishing). In this sense, the notion of “flourishing” here is meant to include something beyond simply complying
with the right to equal freedom and the notion of flourishing that corresponds with that notion.

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policies—are legitimate on the basis of securing the right to equal freedom—the (a) clause of the
constraint. Insofar as there are multiple options we then evaluate how those options are ranked in
accordance with the set of perfectionist considerations—the (b) clause of the constraint—and take
the top-rank option as the legitimate option for the state to implement.190 This will narrow down
the set of options that are permissible to implement and allow officials to use further considerations
to decide between those options licensed by the purpose of the state. The perfectionist constraint,
then, is relevant if two assumptions are met: (i) that considerations about how to secure the
conditions for people’s right to equal freedom justify a range of different, incompatible policies
and (ii) that perfectionist considerations can rank those policies.
To get a sense of this, let us focus on an example: Suppose that the development of a sense
of spirituality contributes to human flourishing. And suppose, further, that securing the conditions
for people’s right to equal freedom requires that the state ensure children have access to education.
But there are multiple options for how the state may do this: It could (1) require public education,
(2) allow public and private education but only provide funding for public education, or (3) it could
allow public and private education and provide funding for whatever parents prefer to send their
children to. This private education in these cases includes sectarian religious institutions and for
this reason considerations in favor of developing a sense of spirituality gives some additional
weight to options that allow for religious education. This consideration then can rank the options,
from most preferred to least, as, say, (3), (2), then (1). In this situation, there are multiple options,
(1), (2), and (3), justified as a means of securing people’s right to equal freedom—satisfying (a)—
190 This process can be made more complex in various ways. For example, it does not need to take only the top ranked
option, but perhaps could simply take all options that are suitably above some threshold. Another complication as well
is the interaction between the relevant perfectionist considerations and procedural considerations—e.g. if some policy
is preferred through the democratic processes. For the purposes of this discussion, resolving these complexities is not
necessary, and the simplified process discussed in the text here is sufficient.

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and a perfectionist consideration that can rank them and so delineate which one should be chosen
by officials—satisfying (b).
[1.2] Motivations for the perfectionist constraint
The perfectionist constraint provides an answer to the Indeterminacy Worry raised in
Chapter [1] and the problem the Indeterminacy Worry leads to for Kantians discussed in Chapter
[3]: It makes it the case that there is a more-determinate action the state should take by restricting
the range of legitimate options. Further, it allows that some further considerations—perfectionist
considerations—are relevant for determining what the state ought to do. It thus provides an answer
for why some further considerations should be taken into account beyond those required for
securing the right to equal freedom, avoiding the restricted position outlined in Chapter [3]. And
it does so in a plausible way by linking together the further considerations with questions of state
legitimacy. If we think that a state is legitimate only if it complies with the perfectionist constraint,
and that perfectionist considerations are relevant for complying with the perfectionist constraint,
then we can answer why such further considerations ought to be used by officials. We thus have
an answer for the Indeterminacy Worry—the indeterminacy is resolved by appeal to some
conception of flourishing, which in turn licenses officials to use some set of perfectionist
considerations in complying with it.
At the same time, the perfectionist constraint represents a very un-Kantian approach to
political philosophy. It seems to turn the state into an engine to promote people’s flourishing—
something that Kant and many contemporary Kantians deny.191 Prior to examining the merits of
191 Kant, for example, holds that a “government established on the principle of benevolence toward the people like
that of a father toward his children […] is the greatest despotism thinkable” (“On the Common Saying, 9:8:290-291).
Similarly, Japa Pallikkathayil argues in favor of Kantian political philosophy on the grounds that it provides a robust
response to perfectionism (“Neither Perfectionism nor Political Liberalism.” Philosophy & Public Affairs. Vol. 44.

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the perfectionist constraint within the Kantian system, then, it might be useful to motivate why
someone—a Kantian or a perfectionist—might want to adopt the constraint in the first place
(besides the fact that it offers a solution to the Indeterminacy Worry). Why would anyone propose
such a combination of views?
I think that it is plausible that a theory could both be convinced of the Kantian position that
the fundamental justification for the state is to secure the right to equal freedom, but also think that
the same basic motivations for valuing equal freedom support valuing a certain conception of
flourishing for the state to pursue. Take, for example, the following scenario:
Liberal perfectionism: Beatrice endorses the Kantian picture, but is also attracted to a
vision about the value of people being able to live autonomous lives and exercising their
faculties of choice. Again, these positions may be connected for her. People’s mutual
independence, understood in the Kantian sense as a moral status grounding their rights,
might be attractive precisely because that kind of status allows people to exercise their
higher faculties through choices. Beatrice may thus endorse the idea the state and state
action may only be justified on Kantian grounds, but that the state is also constrained to
pick those policies which improve people’s ability to exercise their capacity for choice.
For Beatrice, there is a common kind of concern that motivates her both to adopt people’s right to
equal freedom and the perfectionist constraint: A view of human life as one in which people
exercise their higher faculty through choices. This is a kind of Millian view about what contributes
to human flourishing.192 This view is not required by people’s right to equal freedom—people can
accept the right while denying that there is anything valuable about the exercise of higher
faculties—but it at least seems not only compatible with it, but also supportive of it. It makes sense
No. 3. 2016. pp. 171-196) and Arthur Ripstein argues that people cannot use the government to simply promote their
own values (Force and Freedom: Kant’s Legal and Political Philosophy. Harvard University Press. 2009: 283).
192 John Stuart Mill, On Liberty and Utilitarianism in On Liberty, Utilitarianism, and Other Essays. Oxford World
Classics. Eds. Mark Philp and Frederick Rosen. Oxford University Press. 2015. While Mill is typically taken to be
opposed to perfectionist state action, his opposition is grounded on the idea that the free exercise of our higher faculties
is part of human flourishing. Further, this is taken by Mill to ground certain kinds of state conduct, at least to eradicate
the “evils” that prevent flourishing.

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why a person might value both having a right to their own choice and think that having a choice
is valuable as a part of exercising a higher faculty.
Besides cases where both a person’s conception of flourishing and the appeal to the Kantian
position share a similar basis, it seems plausible that many people could become convinced of the
Kantian argument for the state in Chapter [2], but then wonder why that should limit whether the
state has a legitimacy-based duty to also promote flourishing. That is, being convinced that
Kantians have the correct account for the justification of political authority does not appear, at first
glance, to bar anyone from adding the perfectionist constraint to that theory. We should anticipate,
then, that the more convincing the Kantian project is, the more tempting the perfectionist constraint
will also be.193 The worry that perfectionists convinced by Kantians about the value of people’s
equal freedom would then incentivize positions adopting something like the perfectionist
constraint, that is, unless we can identify some argument for why Kantians can reject the
perfectionist constraint. Absent such an argument, Kantians might find themselves unable to resist
ceding ground to a perfectionist position they would wish to reject.
[2] The trouble for Kantians
Here I will explore whether some typical arguments that Kantians use to reject
perfectionism extend as well to the perfectionist constraint. In particular, I focus on two arguments
I call the Compelled Association Argument and the Public Grounds Argument and argue that
193 A similar process has already occurred in a similar debate concerning public justification: Political liberals argue
that laws and policies in a liberal state are legitimate only if they are publicly justified. Originally, political liberals
took this to exclude perfectionism, and so it was thought that perfectionists had to be opposed to public justification.
Recent argumentation from Paul Billingham (“Liberal Perfectionism and Quong’s Internal Conception of Political
Liberalism.” Social Theory and Practice. Vol. 43. No. 1. 2017. pp. 79-106) and Collis Tahzib (“Perfectionism:
Political not Metaphysical;” Perfectionist Justice, ch. 7) has shown how perfectionists could adopt public justification,
and some perfectionists, such as Tahzib, have developed conceptions of perfectionism compatible with some
conception of public justification.

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neither argument is able to explain why Kantians can reject the perfectionist constraint insofar as
the perfectionist constraint only restricts the domain of legitimate state action. The point of this
focus is to demonstrate the limits of these arguments against using perfectionist considerations to
decide between laws and policies that are justified on the basis of securing people’s right to equal
freedom. Seeing the limits of these arguments then should point to the need for further
development of how Kantians can address the perfectionist constraint.
[2.1] The Compelled Association Argument
The Compelled Association Argument begins with the fact that the state is a non-voluntary
association that has authority over its members. This is a condition that requires some form of
justification. This is because people’s right to equal freedom means that no one is permissibly
subject to the authority of others or forced into an association with them by nature—it is not a
natural moral state. It is thus necessary to justify compelling people to enter into a political
association by the state. The only acceptable explanation for what could compel people to enter
into the state, for Kantians at least, is people’s right to equal freedom itself. The only grounds of
juridical authority compatible with people’s right to equal freedom is the right to equal freedom
itself. Anything else would subordinate some people to others in a way incompatible with that
right. This is the argument developed in Chapter [2].
Kantians hold that this condition restricts what courses of actions the state may permissibly
pursue. The state is only permitted to pursue those courses of action that are for the purpose of
securing people’s right to equal freedom. Courses of actions designed to promote other ends—
such as the promotion of people’s flourishing—are correspondingly barred on the grounds that
they require the state to act outside its legitimate purpose. This gives us a test to see whether a

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particular course of action is permitted for the state—as Pallikkathayil puts it, “When considering
state actions, we should ask ourselves whether this is something we have to work together on in
order to ensure our mutual independence. If not, the state action places people involuntarily in a
collective activity that should be voluntary.”194 That is, anything other than those courses of action
that are part of securing people’s right to equal freedom are ways of compelling people to engage
in a collective activity that ought to be voluntary. This is the Compelled Association Argument.
The Compelled Association Argument prohibits various forms of perfectionist state action
when the justification of that state action is based on perfectionist considerations, rather than
people’s right to equal freedom. Pallikkathayil gives the example of prohibitions on tattoos: Even
if getting a tattoo is bad for the person who receives it, perhaps degrading them in some way, the
state has no authority to implement such a prohibition unless it can show that there is a sufficient
justification on the grounds of securing people’s right to equal freedom.195 Insofar as that is
unlikely, the adoption of such a prohibition is compelling people to engage in a form of conduct
that ought to be voluntary. It is extending the non-voluntary association of the state into domains
where activities ought to remain voluntary.
The question here is whether the Compelled Association Argument gives us reasons to
reject the perfectionist constraint. I think the intuitive point might be made: It seems like the
perfectionist constraint compels people to promote ends that they can choose to not promote—
whatever the perfectionist ends of the state are. Given this, it seems that to have the state seek to
194 See also Philip-Louis Hodgson, “Kant on the Right to Freedom: A Defense.” Ethics. Vol. 120. No. 4. 2010. Pp.
791-819: “If we accept, as Kant does, that only a justification for coercion that meets this exacted standard—only a
justification that any rational agent must accept qua rational—fully respects the standing of the person against whom
coercion is used, then it follows that rational agents have a right to freedom in the relevant sense: the only ground on
which their freedom can justifiably be restricted is the need to protect the exercise of rational agency” (799).
195 Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 177-183.

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promote them is to force people into activities that ought to be voluntary. Correspondingly, the
perfectionist constraint might be thought to fail the Compelled Association Argument.
While the intuitive point behind the position here makes sense, I do not think the Compelled
Association Argument works as a response to the perfectionist constraint. This is because the
perfectionist constraint places a limit on what actions are legitimate, and it does not increase the
range of actions the state may perform. All the ways in which people can be compelled to associate
involuntarily with others under the perfectionist constraint, then, are also justified on the basis of
securing people’s right to equal freedom. Unlike the tattoo case, then, the policies under
consideration do have some sufficient justification on the basis of securing people’s right to equal
freedom. It is just that the perfectionist constraint excludes some otherwise justified policies from
consideration, and so restricts the range of involuntary associations people may be a part of. The
puzzle is how the Compelled Association Argument, which seems to focus on why we cannot
extend the range of involuntary associations, can explain why it is wrong to restrict the range of
involuntary associations.
Kantians might hold in response that even though the perfectionist constraint does not
extend the range of state authority, it does implicate new duties for citizens that they have to satisfy
as part of the state.196 For if the perfectionist constraint restricts legitimate state action, then the
citizens will have duties to ensure that the state complies with the constraint and to constrain
themselves so that they are compliant with the constraint. These duties, we might think, impose an
unjustified involuntary association on the part of the citizens.
I do not think this response is compelling. This is for two reasons. First, the response
assumes that because x is part of what determines whether state conduct is legitimate, it follows
196 Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 194-195.

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that citizens have a duty to check whether the state is satisfying x. This need not follow—perhaps
citizens only have duties to ensure that officials carry out their responsibilities as proscribed by
their roles, but the perfectionist constraint is not itself part of the roles. If so, then citizens might
have a reason to evaluate whether officials satisfy the constraint, but there is no duty to evaluate
whether they are doing so. Second, the response assumes that adopting the perfectionist constraint
is not itself part of securing people’s right to equal freedom, but it might be. For insofar as adopting
the perfectionist constraint is a way of resolving the Indeterminacy Worry, it may be argued that
complying with the perfectionist constraint is part of what is necessary for securing people’s right
to equal freedom. At the very least, given the problems in Chapter [3], Kantians would need to
provide their own alternative solution to the Indeterminacy Worry to demonstrate that the
perfectionist constraint isn’t required as a solution to the worry.
Perhaps more importantly, the Compelled Association Argument seems like a bad
explanation of what is wrong with the perfectionist constraint. The Compelled Association
Argument provides a test for why certain courses of action are not open to the state. It does not
explain why certain courses of action ought to be open to it—at least insofar as the state is still
able to secure people’s right to equal freedom. Insofar as the perfectionist constraint restricts the
range of action that the state may pursue, it is odd to think that a complaint against the constraint
is one that the state cannot pursue certain courses of action—after all, none are being suggested!
For this reason, the Compelled Association Argument is unsatisfying because it seems to only
provide an explanation for prohibiting courses of action by the state, and not for allowing them.
This seems to be the wrong intuitive grounds to object to the perfectionist constraint.197
197 Some might hold that the argument in this section moves too quickly. The argument holds, basically, that whether
some policy is a permissible option for the state to pursue is determined independently of the reasons that officials or
citizens have for adopting the policy, and only on the basis of whether it can be justified as securing the right to equal
freedom. But we might think that securing the right to equal freedom is only a necessary condition on determining if

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[2.2] The Public Grounds Argument
The Compelled Association Argument outlines a limit on the range of permissible laws and
policies that a state can adopt. But, as argued in Chapter [3], Kantians should also be concerned
with how the state, or state officials, conduct themselves in determining what policies to pursue.
In particular, there are constraints on how officials can conduct themselves based on what kind of
conduct is consistent with thinking of the state as governed by the purpose of securing people’s
right to equal freedom. This imposes constraints on what kinds of considerations officials may use
in justifying what laws and policies to adopt. In particular, officials may not use public resources
to pursue non-public ends. Officials are permitted, on this view, to only act on the basis of public
considerations that are derived from people’s right to equal freedom.198
Let us call this the Public Grounds Argument. Something like this argument was used in
Chapter [3] to argue that considerations which are incompatible with recognizing people as free
and equal and considerations that serve the official’s private ends—such as their personal profit or
promoting their own personal moral ends—ought to be excluded from the range of permissible
considerations officials may take into account when deliberating.199 The argument might extend to
the perfectionist constraint insofar as the perfectionist constraint permits, or requires, officials to
a policy is permissible, and that a further necessary condition is that the policies are adopted “for the right reasons” or
“with the right intentions.” The question, then, is “What reasons are the ‘right’ reasons to use in determining the
policies the state should adopt?” and this is addressed in Section [2.2].
198 This view is mostly clearly presented by Arthur Ripstein (“Property and Sovereignty: How to Tell the Difference.”
Theoretical Inquiries in Law. Vol. 18. 2017. pp. 243-268; Force and Freedom, ch. 7). Hodgson also argues that the
state must be able to justify its conduct to citizens, which he takes to rule out “any view that attempts to justify coercion
by invoking the correct conception of what is of value in human life—be it happiness, perfection, equality, or what
have you” (“Kant on the Right to Freedom,” 803). The only appropriate grounds for state action is freedom itself. See
also Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 196.
199 Ripstein, Force and Freedom, 193-194.

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use perfectionist considerations about flourishing in justifying what policies to pursue. When
officials act on such perfectionist grounds, we might think, officials act on the basis of
considerations that some citizens may dissent from. Not all citizens need to think, for example,
that Beatrice’s Millian conception of flourishing is correct. For an official to act on such a basis,
then, would be for the official to act on the basis of a non-public consideration—a consideration
that some could reject. Consequently, the Public Grounds Argument would hold that it is
illegitimate for the official to act on the basis of such a consideration, and so the perfectionist
constraint ought to be rejected as it allows officials to act on such non-public considerations.
This argument, though, falls afoul of the problems raised in Chapter [3]. That is, as argued
there, officials must be able to act on some considerations beyond those required for securing
people’s right to equal freedom—some further considerations. Otherwise, we would be unable to
resolve the Indeterminacy Worry and be stuck adopting the restricted position, with the problems
outlined for it in Chapter [3]—it makes the state too insensitive to the well-being of the people and
denies people control over the political system to address the insensitivity. If so, then something
more than just the fact that the perfectionist constraint seems to permit officials to act on the basis
of considerations that some citizens can reject is necessary, and so the Public Grounds Argument
needs to be supplemented by some further account of what considerations officials may use if it is
going to provide a sufficient reason to reject the perfectionist constraint.
The most plausible possibility is that the perfectionist considerations used by officials are
akin to considerations that deny that people are free and equal or that are corrupt—that the reasons
I gave to reject the unrestricted position in Chapter [3] apply as well to the perfectionist
considerations. While this might be true for some possible conceptions of flourishing, and so some
possible formulations of the perfectionist considerations, I do not see why this would be a general

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issue. Take Beatrice’s Millian conception of flourishing in terms of the free exercise of higher
faculties. Such a conception of flourishing does not deny that people are free and equal, rather it
seems to affirm it. Further such considerations do not concern the personal profit of officials or the
private moral projects of officials—the conception of flourishing in the perfectionist constraint is
not supplied by the individual officials, but rather by whatever our theory of flourishing is. This is
especially true since, as noted in Section [2.1], officials will still need to take into account
considerations of what is required to secure the right to equal freedom insofar as the perfectionist
considerations are used only to select from among the policies justified on the basis of people’s
right to equal freedom. Correspondingly, the intuitive problems that arise for the unrestricted
position do not obviously extend to the perfectionist constraint.200
At a more basic level, I think the Public Grounds Argument will fail to show that the
perfectionist constraint is incompatible with the Kantian position for a simple reason: It relies on
having an account of what is “public” and what is “private” to show that the use of perfectionist
considerations is the use of “private” considerations, and so impermissible. I argued in Chapter [3]
that Kantians lack a good account of the distinction between “public” and “private”
considerations—the right to equal freedom is not sufficiently determinate to guide policy, and so
something beyond that right itself must also count as “public” for the purposes of what
considerations may be used. The perfectionist constraint is proposed as a potential solution. If so,
then the perfectionist constraint itself would partially define the distinction between “public” and
“private” considerations, and so the distinction could not be used as a reason to reject the
perfectionist constraint. That is, we cannot prejudge whether the use of perfectionist considerations
200 For discussion of whether allowing perfectionist considerations is, in general, corrupting see Wall (“Moral
Environmentalism,” in Paternalism: Theory and Practice. Eds. Christopher Coons and Michael Weber. Cambridge
University Press. 2013. pp. 93-114: 112-114), Tahzib (A Perfectionist Theory of Justice, 267-272).

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is impermissible unless we have independent reason to reject the perfectionist constraint. For this
reason, it is necessary to provide a more fundamental objection.
[3] Against the perfectionist constraint
I think the arguments against the perfectionist constraint outlined in Section [2] share a
common feature that explains why they fail to show that it is incompatible with the Kantian picture:
They fail to show that the Kantian conception of legitimacy itself must exclude perfectionist
considerations. The Compelled Association Argument focuses on whether perfectionist
considerations can provide independent justification for state action, while the Public Grounds
Argument requires us to assume a conception of what considerations are legitimate for officials to
use without demonstrating that perfectionist considerations must be excluded. In this section I will
outline what determines the range of legitimate state action and show why it presents a prima facie
case against the perfectionist constraint. Then in Section [4] I argue against responses that a
potential supporter of the perfectionist constraint might give.
[3.1] Basic conditions on legitimacy and the original contract
For Kantians the ideal of the original contract determines the basic conditions on the range
of legitimate action for the state. That is, the ideal of the original contract guides the state’s
behavior—it is an ideal that the state is supposed to act toward—that holds for all possible states.
It is what we use to “think of the legitimacy of the state” in general.201 Whether a particular action
of the state or way of structuring the state is permissible depends on its relationship to this ideal—
whether it is consistent with the ideal, required by the ideal, or inconsistent with the ideal. The
201 Kant, Metaphysics of Morals, 6:315; see also Ripstein, Force and Freedom, 198-204.

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perfectionist constraint proposes some basic constraint on what it is permissible for the state to do,
it thus represents itself as an additional component in the ideal that the state is supposed to strive
for. The question of whether Kantians can resist the perfectionist constraint may thus be formulated
in the following way: May the idea of the original contract include some perfectionist content?
The original contract’s role as delimiting the basic conditions on the legitimacy of the state
arises from its role in addressing the problem of justifying state authority.202 People’s equal
freedom requires that no one be subject to the unilateral authority of anyone else. But the authority
of the state requires that people are subject to its authority. The way that this is possible is if the
state does not represent a unilateral authority, but rather an omnilateral authority.203 The idea of
an omnilateral authorization is that it is an authorization that each member of the society could
give to the state. We are to imagine the original contract as where “everyone (omnes et singuli)
within a people gives up his external freedom in order to take it up again immediately as a member
of a commonwealth, that is, of a people considered as a state.”204 The idea is that people give up
their “lawless” freedom within the state of nature to regain freedom under laws within the state.
The discussion of a “contract” and people “giving up their freedom” invokes the idea of people
consenting to a state which is guided by some particular ideal.205
202 For discussion of the justification of state authority within a Kantian framework see Chapter [2].
203 Ripstein, Force and Freedom, 214.
204 Kant, Metaphysics of Morals, 6:315-316
205 Note that this talk of “consent” does not concern whether there is actual consent and does not rely on the idea that
people within an actual society have hypothetically consented to it. The state of nature is an abstraction not an actual
historical condition and the original contract involves “only the idea of” forming a contract (Kant, Metaphysics of
Morals, 6:315). The original contract, and the discussion of consent to it, is a way of modeling certain values and their
operations.

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Let us begin, then, by exploring this idea: What is the sense in which we are to imagine
people consenting to the state guided by some ideal, i.e. the original contract? What kind of consent
is relevant here? It is first necessary to specify the condition in which we are imagining people
consenting and the people who are doing the consenting. I do not think we are imagining people
already in the state consenting to the formation of the state, but rather people in the state of nature
consenting to the formation of the state. This is because the problems Kantians seek to resolve is
the problem that emerges from within the state of nature in particular.206 It is thus relevant to
address people in that condition. We are to imagine, then, people in a pre-political condition where
no one is subject to the authority of anyone else—each person is free and equal—and they are in
conditions which inevitably put them into contact with others—they are not isolated on separate
islands.207 We are also to assume that people in this condition recognize themselves as free and
equal in a relatively minimal sense—that they are not by nature subject to the authority of anyone
else. This may be taken to entail certain other minimal propositions about people in this
condition—that they have whatever requisite capacities are necessary to make sense of them being
free and equal.208
Beyond these assumptions, we should not make any further assumptions about the
conditions under which they are consenting or the nature of the people consenting. That is, we
should not presuppose that they are (or are not) consenting in conditions which are abundant or
scarce. We should not presuppose that they have or lack any particular conception of value or
206 Kant, Metaphysics of Morals, 6:312; Ripstein, Force and Freedom, ch. 6.
207 Kant, Metaphysics of Morals, 6:262; Ripstein, Force and Freedom, 34.
208 This is somewhat parallel to how the constituency of the reasonable are formed in the “internal” conception of
public reason—the “reasonable” are defined as accepting certain basic normative claims (e.g. the values of freedom,
equality, and fairness) and are held to reason on the basis of those shared normative ideas. See Quong (Liberalism
without Perfection, Oxford University Press. 2011: 143-144; 180-187) for discussion.

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bonds or ties to others, at least insofar as these are compatible with no one being subject to the
authority of anyone else. This does not mean that these people have no bonds or ties to others or
that they lack any conception of what they value. It is just that these ties are not assumed. All that
is assumed is that people accept their status as free and equal beings with respect to one another.209
The next issue to address is the problem that gives rise to the need for people to form some
kind of group together. This is the problem outlined in Chapter [2] between the need for some
determinate set of rights—on the basis of people’s right to equal freedom—and the indeterminacy
of those rights by nature. As explained in Chapter [2], the only solution to this consistent with
people’s right to equal freedom is for them to gather together into a union that makes those rights
determinate—the state. This gives content determining to what purpose the people are to contract
for.
Finally, it is necessary to think about what kind of consent is sufficient to determine the
content of the contract that people agree to in forming the state. To begin, I do not think the answer
is “what people would consent to (or would rationally consent to) from the state of nature.” This
is because it may be rational—for some people in some circumstances—to give up their right to
equal freedom altogether. If I am starving and likely to die, I may be willing to give up my right
to freedom for safety and food. If I feel sufficiently independent of others and wish to not
associate—or to only associate if I get to be king—I may be unwilling to comply with the demands
of people’s right to equal freedom and form a union with others. Given that the fundamental
normative value within Kantian political philosophy is people’s status as free and equal beings—
209 This follows from the Kantian assumption that it “is not experience from which we learn of the maxim of violence
in human beings…that makes coercion through public law necessary” and that “however well disposed and lawabiding humans might be, it still lies a priori in the rational idea of such a condition (one that is not rightful) that before
a public lawful condition is established individual human beings…can never be secure against violence from one
another, since each has its own right to do what seems right and good to it” (Metaphysics of Morals, 6:312).

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and the right to equal freedom—these forms of consent represent a rejection of the Kantian
political project, rather than a constraint on it.210
This suggests the following condition: That people must be able to consent to the ideal
governing the state, the terms of the original contract, consistent with their status as a free and
equal being—or consistent with their right to equal freedom. Anything else would be an
abandonment of the Kantian position, rather than an account of it. People’s moral status is taken
as a fixed point, what could be consented to is then premised on people who accept that they are
free and equal beings and prioritize this status over the potential advantages of consenting. This
provides a minimal condition on what the terms of the original contract must be like: They must
be such that people could consent to the state governed by the ideal consistent with their status as
free and equal beings.211
[3.2] How we might include perfectionist ideals
The question, then, is what does it mean to say that people could consent to the state
governed by some ideal consistent with their status as free and equal beings? There are some ideals
that are plainly inconsistent with people’s status as free and equal beings since they deny that
people have that status—slave societies might view themselves governed by such an ideal, as
would societies governed by some “divine right of kings.” People could not submit to consistent
with their status as free and equal beings insofar as they would be accepting an ideal that denies
their moral status. There are other ideals that are consistent with people’s status as free and equal
210 Ripstein, Force and Freedom, 36-37; 128-143.
211 For some discussion of the kind of Kantian justification presented here, see Ripstein, “The Innate Right of
Humanity and the Right to Justification.” in. Constitutionalism Justified: Rainer Forst in Discourse. Eds. Ester HerlinKarnell, Matthias Klatt, and Héctor A. Morales Zúñiga. Oxford Academic. 2019. pp. 3-31.

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beings—they do not require that denial of people’s status as free and equal. We can thus assume
that people are determining the terms of the original contract by choosing from among the range
of ideals that are not plainly inconsistent with people’s status as free and equal beings.
How, though, are we to pick out the terms of the original contract from within that range?
To begin, we may imagine a range of societies that are governed under the terms of various ideals
consistent with people’s equal freedom. Some of these societies might be partially governed on
the basis of various perfectionist ideals. Thus, we might see one society that is governed by the
ideal of exercising higher faculties, an ideal like what Beatrice subscribes to while another might
be governed by the ideal of having citizens exhibit moral, intellectual, and artistic excellences—
suppose this perfectionist conception is one that Alfred subscribes to.212 These societies would
correspondingly include some kind of perfectionist constraint—the state is governed by an ideal
whereby it must act in accordance with the conception of flourishing (flourishing through exercise
of higher faculties, flourishing through moral, intellectual, and artistic excellence) in cases where
what is required to secure people’s right to equal freedom does not give a determinate answer. The
question is whether these ideals can become part of the terms of the original contract—as they are
for the perfectionist constraint.
I will assume that Alfred and Beatrice could consent to a society that is partially governed
by a perfectionist ideal consistent with their equal freedom. This, though, is not enough to get us
the content of the original contract. For we now have two potential original contracts that could be
formed: one based on moral, intellectual, and artistic excellence and one based on the free exercise
of higher faculties. But there is only one original contract—one set of governing ideals—for any
particular state, it cannot be subject to two different original contracts. For that would require it to
212 For an example of a perfectionist position life Alfred’s, see Tahzib, A Perfectionist Theory of Justice, ch. 5.

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be governed in accordance with two distinct, and incompatible, standards of legitimacy. Further,
the original contract is supposed to supply the basic conditions of legitimacy that apply to allstates.
If so, then there cannot be two different original contracts that states could select between, for then
neither contract is actually specifying the basic conditions of legitimacy.213
The mere fact that Alfred and Beatrice could consent to either state, then, is insufficient to
determine the terms of the original contract, for this allows for multiple possible terms for the
original contract—multiple possible sets of ideals to guide the state—while there is only one set
of basic conditions on state legitimacy. As such, merely focusing on what people could consent to
is insufficient to determine the basic conditions of legitimacy for the state. We need some way to
select from among the various potential ideals to get a single ideal, or set of ideals, to govern the
society through the original contract. How should this be done?
I believe that instead of thinking about what people could consent to we should focus on
what people could refuse to consent to.
214 That is, the terms of the original contract are those terms
which no one could refuse to consent to consistent with their status as a free and equal being. The
reason for this is because we assume that people enter into political society on terms equal to one
another. That is, no one is assumed to have any particular advantage in deciding the terms under
which people contract. For people are equally subject to the authority of one another in the state
213 The only content that would count as a basic condition on legitimacy would be the overlap between the two different
specifications of the contracts—somewhat similar to what constitutes the “overlapping consensus” that picks out the
values shared by the reasonable on a Rawlsian conception. See Quong, Liberalism without Perfection, ch.6, for
discussion. I argue in Section [3.3] that the only possible overlap is people’s right to equal freedom.
214 Kant: “a public law that determines for everyone what is to be rightfully permitted or forbidden him is the act of a
public will, from which all right proceeds and which must therefore be incapable of doing wrong to anyone. But this
is possible through no other will than that of the entire people…for it is only to oneself that one can never do
wrong…no particular will can be legislative for a commonwealth. This basic law, which can arise only from the
general (united) will of the people, is call the original contract” (“On the Common Saying,” 8:294-295). It is clear
from later context that Kant is not talking about legislation of the original contract in terms of actual legislation, but
as an ideal because “as a fact it is indeed not possible” to form the original contract (“On the Common Saying,” 8:297).

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of nature—no one can bind another to any extent greater than they can in turn bind them. And so
no one can subject another to unequal terms in entering political society. For if anyone was able to
do so, then they would have the power to bind another to a greater extent than they can in turn be
bound. That is, there would have to be some asymmetrical authority assumed between individuals
in the state of nature.215 Part of the idea behind imagining the original contract as forming an
omnilateral will—the will of all—is assuming that each person must be able to consent on equal
terms to everyone else.
Let us imagine Alfred and Beatrice trying to come to an agreement about what ideals will
govern the society. Suppose Beatrice proposed that the society is governed by people’s right to
equal freedom and the value of people’s free exercise of higher faculties. Must Alfred agree to
this? Contingently, Alfred may agree to this—if he is nice or conciliatory. But this is a contingent
matter; he could choose to not agree. Alfred could have his own proposal which includes people’s
right to equal freedom and the value of moral, intellectual, and artistic excellences as the guiding
ideals for the state. If Alfred and Beatrice are equal, then Alfred’s proposal would have just as
much merit as Beatrice’s proposal. That is, as equals, no one’s proposal would be granted any
greater weight than anyone else’s proposal.216 Otherwise, the terms of entrance into the society are
unequal—some people must subordinate their own conception of values, while others are not
required to, even though both conceptions of value could be consented to.
215 What about the assumption that it is a matter of greater natural power? Our assumptions concerning such natural
powers is that the terms of the contract cannot be made to depend on any particular distribution of natural power, as
we are to set the terms of the contract on the basis of any potential distribution of natural power. This would require
some greater assumption about the nature of the people contracting than we have access to. For some discussion, see
Stilz, Liberal Loyalty, 49-50.
216 This premised might be challenged on the grounds that we should not evaluate whether Beatrice or Alfred is the
one making the proposal, but rather on the basis of whether the relevant proposal is true. I will discuss such challenged
in Section [4].

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This creates a stalemate between Alfred and Beatrice: Neither of them is required to
consent to the other’s proposal and to they may remain deadlocked. There seem to be two possible
solutions for moving forward. One is to simply include everyone’s ideals so long as someone could
consent to them—that each person’s ideals can function in a regulative role as an ideal guiding
state conduct. We might think that this solves the problem by making it so that both Alfred and
Beatrice enter into the state equally—their ideals are equally included in the formation of the state.
I think this option is unlikely to work, for a few reasons. First, Alfred’s and Beatrice’s ideals
may be in conflict with one another or actively deny that the other has any value. If so, then it
would be incoherent to include both ideals in the terms of the original contract. Perhaps there is
some way to form an original contract that only includes those ideals that do not conflict with any
other ideals, but now the contract no longer includes everyone’s ideals. This means that now it
seems that people are no longer entering into the state equally because not all ideals are equally
included in the formation of the state because some possible ideals are excluded.
Second, even supposing the ideals are consistent, universal inclusion only works if people’s
only interest is in making sure their ideal is included, but it makes sense that many people might
be opposed to the inclusion of certain ideals. If so, then it seems like some people could refuse to
consent to a society governed by all ideals. That is, perhaps Alfred’s conception of excellences is
compatible with Beatrice’s conception of the free exercise of higher faculties, but Alfred, for some
reason or other, rejects the free exercise of higher faculties as valuable. Perhaps he sees it as an
incoherent ideal or does not see it as having worth. If so, then it is unclear whether including
everyone’s ideals is actually a way to ensure that everyone enters into the state on equal terms.
Those who reject other’s ideals may deny that are not entering into the state on equal terms to those

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who accept other’s ideals because they may prefer a state that lacks those ideals, and so would
reject universal inclusion as a solution.
Third, supposing that the ideals are consistent and no one dissents from their inclusion,
they must then be assigned weights or have some kind of priority rule between the relevant values
outlined in the ideals. The problem here is that it seems like there are different potential ways to
assign weights to the ideals, and so there would, again, be divergent potential contracts. While
excellences and the exercise of higher faculties might both be included, Alfred will likely assign
more weight to the excellences, while Beatrice to the higher faculties. The conflict about weights,
furthermore, cannot be resolved through an inclusive mechanism where everyone possible way of
assigning weights is included in the original contract, as the different weights would conflict with
one another and so require some further mechanism to assign weights to the different ideals about
how to assign weights, and so the problem will recur.
It seems unlikely, then, that the terms of the original contract can be determined by
attempting to include the various perfectionist ideals of all possible contractors.
[3.3] Excluding perfectionist ideals and the perfectionist constraint
This leads to a second solution: to exclude any ideal that is subject to dissent.217 This is
what I proposed earlier in Section [3.2]. It treats everyone as equal by giving each person’s dissent
from an ideal equal weight, and so no one can be required to enter into a society that acts on the
basis of some ideal they dissent from. Each person’s ideals, then, are treated equally in determining
217 This mirrors a common condition in public reason that considerations subject to reasonable disagreement are
rightfully excluded from determining whether laws and policies are justified. The formation of the argument here
follows a similar method to certain conceptions of political liberalism and how they define the constituency of the
reasonable. The main distinction is simply in what normative assumptions are accepted. For discussion see Hodgson,
“Kant on the Right to Freedom,” 795-804.

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the terms of the original contract, since each person’s ideals are included only if everyone agrees
to their inclusion. Furthermore, this solution avoids the problems faced by the previous solution
of trying to include everyone’s ideals: There cannot be conflict between the ideals included—as
conflict would imply dissent—no one can have reason to disagree with the ideals included—ex
hypothesi—and there is no difficulty weighing the ideals included—we can stipulate that dissent
about how to assign weights can also ground exclusion.
The reason to use possible dissent as the standard for determining what ideals are included
in the terms of the original contract, then, is because attempts at including other’s ideals are unable
to set terms on an equal basis. Someone’s ideals will be prioritized in such a way that can only be
explained in terms of granting them an unequal status relative to someone else—in a conflict with
others they were preferred. Possible dissent, though, grants each person equal capacities to set the
terms of the original contract without requiring any further suppositions about the persons.
People’s status as free and equal beings, then, is respected through setting the terms of the original
contract by evaluating whether there is some possible dissent from some ideals. Only the set of
ideals that no one can dissent from will provide the terms of the original contract, and so the basic
conditions on legitimate state action.218
A worry that might arise here is whether someone could dissent from setting the terms of
the contract in a way that does not include their ideal. That is, suppose that Alfred would prefer a
contract including his ideal to any contract that does not include his ideal. If so, then we might
wonder whether the prioritization of dissent here really treats everyone as equal. It seems that some
forms of dissent—dissent concerning whether an ideal is included—is given priority over other
218 There is an assumption here: That there are some ideals no one can dissent from. I think this is plausible insofar as
no one can dissent from the ideal of people as free and equal, since it is a supposition that people accept this ideal.

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forms of dissent—dissent concerning whether an ideal is excluded. What justifies the priority given
to these forms of dissent?
The issue with this is that it results in the same problems we had with trying to include
everyone’s ideals—if Alfred’s and Beatrice’s ideals are inconsistent, for example, and they both
dissent from the terms of the contract that does not include their ideal, there is no way for them to
both be satisfied. Dissenting from an ideal that does not include one’s preferred ideals, then,
requires that either Alfred or Beatrice is treated unequally—the dissent of one of them must be
dismissed, even though it is of the same kind. The same is not true when the only dissent that
matters is whether an ideal is included in the terms of the contract. For the absence of the ideal
will not result in any incompatible ideals being included. The only way of constructing the terms
of a contract that allows for it to be entered into on equal terms is when each person has equal
authority to determine the terms of the contract, and this only occurs when each person has the
equal capacity to dissent from including an ideal.
The question, then, is whether there are any perfectionist ideals that can be included in the
original contract, and so allow for the perfectionist constraint. I think not. The basic argument is
as follows: (i) The perfectionist constraint is only a basic condition on the legitimate exercise of
authority by the state if it is a part of the original contract (Section [3.1]); (ii) The perfectionist
constraint is part of the original contract only if no one could dissent from the inclusion of the
relevant perfectionist ideals consistent with their status as a free and equal being (Section [3.2] and
Section [3.3]); (iii) For any perfectionist ideal, people could dissent from it consistent with their
status as a free and equal being (hypothesis from the description of people in Section [3.1] and
definition of perfectionist ideals). Thus, the terms of the original contract cannot include any

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perfectionist ideals. Thus, the perfectionist constraint cannot be part of the basic conditions on
legitimacy for the state.
Of course, this conclusion would be a bit trivial if for any ideal, people could possibly
dissent from it consistent with their status as free and equal beings. For then it would turn out that
there are no ideals that set the terms of the original contract, and so no basic conditions on the
legitimacy of the state. Fortunately, there are some ideals that no one can dissent from, namely,
people’s status as free and equal beings. For no one could dissent from the inclusion of what is
required by people’s status as free and equal beings if they are acting consistent with their status
as free and equal beings. This is the only ideal that we assume everyone accepts as part of the
contract situation, and so the only ideal that survives critical scrutiny. The terms of the original
contract, then, are given in terms of people’s right to equal freedom.
Let us call this argument the Possible Dissent Argument. It provides a prima facie case
against the perfectionist constraint by showing that the only possible ideal that can set the terms
of the original contract is the ideal of people as free and equal beings. In Section [4] I will address
some potential arguments that could be made in response. Prior to that, though, I want to explore
the intuitions behind the Possible Dissent Argument in more detail.
[3.4] The Possible Dissent Argument and political life
The Possible Dissent Argument has been presented at a high level of abstraction—in terms
of hypothetical people contracting from the state of nature into the state via setting the terms of a
contract designed to guide the state. Here I want to explore the intuitions behind the argument in
more concrete terms by presenting it in terms of how citizens should think of their own relationship

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to the state and the meaning of that relationship. Hopefully this can clarify what the more practical
implications of the Possible Dissent Argument are.
Here is one way to think of the original contract: In political life there are some matters
that are subject to the political will of the people or political society. This includes lawmaking and
policy decisions, but also certain features of the basic political structure. For example, right now
the United States uses an Electoral College system to decide its president. This feature is
amendable insofar as the Constitution provides for an amendment process. Any feature of the state
that can be in principle be altered fits into this category.219 In political life there are also some
matters that are not subject to the political will of the people or political society. There is no way,
even in principle, of altering these parts of the political society without overthrowing the political
society—the unilateral dissolution of the preexisting political bonds. Some political institutions
may be like this when they are foundational and unamendable. For example, a constitution without
a procedure for amendment might be like this. Try as they might, there is no way for the people to
change the constitution, for it does not grant them the authority to do so and is the basis on which
authority is granted within society.
The original contract is part of the unchanging features of a political society—akin to an
unamendable constitution. This is because the original contract assigns what ideals the state must
strive for, and neither the will of the people nor the will of the political society can change what
those ideals are. This is, after all, what it means for the original contract to determine the basic
conditions of legitimacy for states—the basic conditions hold for allstates and so cannot be subject
219 It will often be the case that it is difficult to change some of the “changeable” features of a political society. The
US Constitution, for example, is notoriously difficult to alter. Even for ordinary laws, the process of changing them
can be long and arduous, subject to generating a significant amount of public opinion to support one’s side. It remains
the case, though, that these are matters subject to ordinary political dispute—even if one is unlikely to win out overall,
one’s potential victory is not prohibited by an unalterable normative feature of the political society.

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to the political will of any one state. The original contract, then, plays a similar role to an
unamendable constitution to a political society.
I think there are intuitive differences in terms of what can be changed in principle within a
political society and what cannot be changed even in principle. The former are subject to a political
process, they are within the political sphere, while the latter are placed beyond politics. The latter,
then, is a declaration that certain ideals or visions of society are illegitimate from the outset. This
is not a difference in the political rights that anyone has, but it is a different in terms of how citizens
are able to relate to the state. Those with ideals or visions of society that are deemed illegitimate
from the outset are placed in a subordinated status.
220 For those who hold the illegitimate views
are excluded from equal participation within political society insofar as others—those whose ideals
are not deemed illegitimate—are able to participate within political society on the basis of their
ideals.221 This is an affront on people’s status as free and equal persons within the state insofar as
some people must restrict their pursuit of their ideals with relation to the state in ways that others
are not required to.222
The methodology developed in Sections [3.1] to [3.3] is meant to elaborate this intuition
and determine the appropriate standard for how to determine what ideals are included in a way
220 This consequence of perfectionism, at least when taken as a fundamental feature of the political society, is explored
by Jonathan Quong (“Disagreement, Equality, and the Exclusion of Ideals: A Comment on The Morality of Freedom.”
Jerusalem Review of Legal Studies. Vol. 14. No. 1. 2016. pp. 135-146) and Martha Nussbaum (“Perfectionist
Liberalism and Political Liberalism.” Philosophy & Public Affairs. Vol. 39. No. 1. 2011. pp. 3–45).
221 A potential solution is to allow no ideals in political society. But this just brings us back to the Indeterminacy
Worry and the problems with the unrestricted position in Chapter [3]. That is, some ideals may be appropriate to use.
222 I take this distinction to come from Kant’s discussion of whether a state may adopt a permanent religion and his
general discussion of perpetual foundations (Metaphysics of Morals, 6:327-328; 6:367-6:369). He argues that people
could not consent to an original contract that includes a perpetual church doctrine insofar as “no people can decide
never to make any further progress in its insight (enlightenment) regarding beliefs, and so never to reform its churches,
since this would be opposed to the humanity in their own persons” (6:327). This shows how any perpetual ideological
alignment of the state is incompatible with people recognizing themselves as free in Kant’s view.

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compatible with people’s status as free and equal persons. The question of how people can enter
into the state on equal terms corresponds to the thought that no one should be subordinated relative
to others in entering into the state. The Possible Dissent Argument, then, provides a test for
determining what would constitute a form of subordination.
It is notable that this argument only extends, and is only meant to extend, to those features
of the state that are unchangeable even in principle. That is, it remains an open question, for all
that has been said here, whether there is something objectionable about a state that in practice
pursues some ideals and not others concerning those matters that are in principle changeable. The
difference, I think, is that matters which are in principle changeable do not condemn anyone to a
permanent subordinated status.223 That is, when one side loses out in a political matter, all that is
reflected in the ultimate decision is that they did not get sufficient support to pursue their ideal. It
does not imply that their pursuit of their ideal is illegitimate or that their political vision cannot
function as a legitimate way for the society to be. All that is implied is that they lost the political
contest. But this is inevitable—no political society can satisfy all ideals.224 The kind of
subordination that obtains with unchangeable aspects of political society, then, does not extend to
changeable aspects of political society. It may be that there is something objectionable about the
state pursuing even some perfectionist ideals. This question, though, is not settled here by
determining the constraints on the unchangeable aspects of a political society.
223 Some may worry that the distinction between whether a feature is permanent or changeable might mean little to
those “on the ground” experiencing the decisions of the state. Why should I care, that is, whether the state’s preference
for some doctrine of flourishing is a permanent or changeable feature? The laws are the same in either case, and so
am I not subordinated in either case? Here I think it is important to note that insofar as no society is without some
constraint, the actual policies that I am subject to are ones that I might have been subject to anyway. So, the real
question concerns not whether the laws are the same in either case, but whether the reasons for the laws are the same
in either case. This worry is addressed in more detail in Chapter [5].
224 Rawls, Political Liberalism, 197-198.

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[4] Responses to possible defenses of the perfectionist constraint
[4.1] Does the right to equal freedom entail some perfectionist ideal?
The Possible Dissent Argument holds as its third premise that for any perfectionist ideal, it
is possible for someone to dissent from it consistent with their status as a free and equal being.
This premise would be false in one of two cases. First, people’s right to equal freedom entails some
perfectionist ideal in the sense that because of people’s right to equal freedom, some perfectionist
ideal must be accepted. Second, people’s right to equal freedom and some perfectionist ideal are
mutually entailed by some common grounds that they both accept. In both cases, it would follow
that no one could dissent from the perfectionist ideal consistent with their status as a free and equal
being—to deny the ideal would be to either deny people’s status as free and equal beings or to
deny the grounds for holding that people are free and equal beings.225
Neither case is, I think, plausible—at least not if the perfectionist constraint is meant to
resolve the Indeterminacy Worry. Take the first case, where people’s right to equal freedom entails
some perfectionist ideal. If the perfectionist ideal follows as a consequence of people’s right to
equal freedom, it is hard to see how the perfectionist ideal can reduce the amount of indeterminacy
left open by people’s right to equal freedom. For ex hypothesi people’s right to equal freedom is
indeterminate in what it requires, and so a perfectionist ideal entailed by it could be no more
determinate than that. This holds for however we understand the perfectionist ideal in this case—
225 Notably, in both cases it is true that if we accept people as free and equal, then we accept the perfectionist ideals.
But, the logical structure is different. For example, only in the second case is it also required that if we accept the
perfectionist ideals, then we accept people as free and equal. These two descriptions, then, differ in their logical
structure and the relationship between people’s status as free and equal and the relevant perfectionist doctrine.

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whatever conception of flourishing we might think people’s right to equal freedom entails. For this
reason, the first case would not generate a relevant form of the perfectionist constraint.226
The second case may seem to fair better. After all, a more general value can give rise to
different kinds of considerations. For instance, the value of human life can give rise to both a
deontic duty to not kill people and a consequentialist goal of saving the most lives possible. These
are not identical or substitutable goals, but we might think that they are coordinated by some
common value. The same might be true about some perfectionist ideal and people’s right to equal
freedom. They may be distinct but coordinated values that follow from a common value that they
both share. Correspondingly, to accept people’s right to equal freedom would require that we
accept the common value, and so also accept the perfectionist ideal.
For example, we might think that people’s right to equal freedom or status as free and equal
beings comes from a broader value of humans as rational creatures and also think that the value of
humans as rational creatures entails a particular conception of flourishing such as Beatrice’s
conception of flourishing as the free exercise of higher faculties.227 If so, then it may be that no
one could dissent from Beatrice’s conception of flourishing, because to dissent from it would be
to dissent from the value of humans as rational creatures, and so to be inconsistent with people’s
status as free and equal beings.
There are two responses to this objection. The first is that this argument works only if both
the following claims are true: (i) the value of humans as rational creatures entails both people’s
status as free and equal beings and a conception of flourishing as the free exercise of higher
226 Specifically, it would fail (ii), the ability to rank the competing options, outlined in Section [1.1].
227 Something like this may be found in Kant’s moral philosophy, see, e.g., Lara Denis, “Individual and Collective
Flourishing in Kant’s Philosophy.” Kantian Review. Vol.13. No. 1. 2008. pp. 82-115.

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faculties and (ii) people’s status as free and equal beings can be established only on the basis of
the value of humans as rational creatures. For (ii) is necessary to ensure that no one can dissent
from the value of humans as rational creatures without also dissenting from people’s status as free
and equal beings. But we, and Kantians, should be suspicious of (ii). After all, in Chapter [1] we
took the right to equal freedom and people’s status as free and equal persons as the fundamental
political value—we did not presuppose any further values to explain it. If so, then the value is
accepted by Kantians without relying on some further basis, and so (ii) is false.228
The second response is that it seems eminently plausible that there could be multiple
potential bases for people’s status as free and equal persons. This is evident from the fact that there
are many different perfectionist ideals that are compatible with accepting people’s right to equal
freedom, but that differ significantly in their values otherwise. For example, it is plausible that
certain religious doctrines could accept that each person ought to find their own way in life, but
that flourishing in life consists in deep conformity with one’s traditional role as set out by God.229
It is hard to see how this conception of flourishing could share a common base with Beatrice’s
conception of flourishing—after all, the religious conception presented here may deny that the free
exercise of one’s higher faculties is itself valuable. If there are multiple, incompatible perfectionist
ideals that can accept people’s status as free and equal beings, then it is unlikely that there is a
single common basis that they all accept that also grounds people’s status as free and equal beings.
Rather, it seems likely that people’s status as free and equal beings could be grounded in a variety
of different ways, and so would not require any particular perfectionist ideal. If so, then denying
228 Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 196.
229 For discussion see Zachary Calo, “Catholic Social Thought and Human Rights.” The American Journal of
Economics and Sociology. Vol. 74. No. 1. 2015. pp. 93-112; Jeremy Waldron, “Religion’s Liberalism.” Criminal Law
and Philosophy. Vol. 15. 2021. pp. 91-103.

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one conception of flourishing, and so one potential basis for people’s status as free and equal
persons, does not entail denying people’s status as free and equal persons.
For these reasons, it is unlikely that there is any particular perfectionist ideal that could not
be subject to someone’s dissent. For there are many incompatible perfectionist ideals that can be
adopted alongside people’s status as free and equal beings.
[4.2] Does the truth of a perfectionist ideal give it any additional weight?
A defender of the perfectionist ideal might next challenge the second premise of the
Possible Dissent Argument—that a perfectionist ideal is part of the original contract only if no one
could dissent from the inclusion of the relevant perfectionist ideals consistent with their status as
a free and equal being. The argument for this premise was based on two main points: First, people
must submit to the original contract on equal terms and, second, people’s perfectionist ideals
cannot all be included on equal terms (Section [3.2]). This relies on a particular interpretation of
what it means to submit on equal terms. The interpretation I defended treats entering on equal
terms such that each possible party to the contract has equal authority in setting the terms of the
contract. For this reason, no one can set the terms of the contract in favor of their perfectionist
ideal to the exclusion of others, since to do so requires unequal authority—one person must assert
greater authority over setting the terms than another.
Some perfectionists may reject this interpretation of equal terms in the following way: A
person’s assertion that a particular perfectionist ideal should be included in the terms of the contract
is not an assertion of their own authority to set the terms of the contract, but rather an assertion of
the truth’s authority to set the terms of the contract. There are two ways of interpreting this
perfectionist response. One way is to interpret it as proposing that the terms of the original contract

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should include some particular true perfectionist ideal—such as the ideal of the free exercise of
our higher faculties—and so people ought to submit to a contract with that perfectionist ideal.230
Another way is to interpret it as proposing that the terms of the original contract should include
the true perfectionist ideal whatever that may turn out to be, where the actual content of the true
perfectionist ideal is not determined until after the contract is agreed to.231 Here I will address the
first way of interpreting the perfectionist response, in Section [4.3] I will address the second way
of interpreting the perfectionist response.
The first interpretation of the perfectionist response holds that it is a mistake to think that
when a perfectionist ideal is prioritized in the state of nature, it necessarily is because of an
inequality introduced between the parties in the state of nature. This is because when parties in the
state of nature propose some perfectionist ideal they need not be doing so because it is their
personal ideal—although that is probably also the case—but rather because it is the true
perfectionist ideal.232 That is, parties can appeal to the truth of an ideal for why it should be
included in the terms of the original contract. If so, then the parties are not appealing to any feature
of themselves in explaining why the ideal should be included in the original contract—it is not
because it is their preferred perfectionist ideal, but because it is the true perfectionist ideal that
licenses its adoption. Correspondingly, a perfectionist might argue, the demand to include the ideal
230 This argument is perhaps best presented by Joseph Raz (“Facing Diversity: The Case of Epistemic Abstinence.”
Philosophy & Public Affairs. Vol. 19. No. 1. 1990. pp. 3-46; “Disagreement in Politics.” American Journal of
Jurisprudence. Vol. 43. 1998. pp. 25-52) and David Enoch (“Against Public Reason.” in Oxford Studies in Political
Philosophy Vol. 1. Eds. David Sobel, Peter Vallentyne, and Steven Wall. Oxford University Press. 2015. pp. 112-
142). A similar kind of position can be found in Arneson (“Liberal Neutrality on the Good: An Autopsy”).
231 Tahzib, A Perfectionist Theory of Justice, ch. 4.
232 Enoch, “Against Public Reason,” 130-134.

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is consistent with the equality of the parties in the state of nature—what justifies the inclusion of
an ideal is its truth, and not that it is proposed by any particular party.
My objection to this perfectionist response is that it has moved too quickly in assuming
that the truth of a perfectionist ideal is a neutral standard that all parties in the original position
accept.233 That is, while it is true that the standard does not treat the parties in an unequal way—
since the standard is not about the parties at all—it is unclear whether the inclusion of the standard
treats the parties in an unequal way.234 After all, why think that the truth of a perfectionist ideal is
sufficient to justify its inclusion in the terms of the original contract? Where did that standard come
from? Why not prefer some other standard? The perfectionist response assumes that truth is the
relevant standard, but it is unclear why this must be the case within the Kantian theory.
There are two reasons one might reject adopting the true perfectionist ideal. One is that
those who hold some different perfectionist ideal are unwilling to submit to a condition where they
are required to follow some other ideal. That is, even if they acknowledge that they cannot advocate
for their own ideal’s inclusion, as it is false, they might reject being required to submit to some
alternative ideal. Another reason is that someone might hold that the state should not act on the
basis of any conception of flourishing at all, even if it true. This is a common position in political
philosophy held by a variety of anti-perfectionist theorists.235 For these theorists, the state should
233 There are alternative formulations possible—such as the rejection of any false perfectionist doctrine as a possible
grounds for action. I believe they suffer from similar issues—they assume that truth and falsity are the relevant
currency to determining what gets included.
234 This is well brought out in Quong, “Disagreement, Equality, and the Exclusion of Ideals,” 141-143. He expresses
there the worry that what matters is not that one person is subordinated to another, but that some people are required
to subordinate themselves to a rule based on a principle that they reject. If so, then the fact that the rule does not come
from the personal authority of any person, but its own truth, does not undermine the complaint.
235 For example, Kantians such as Ripstein and Pallikkthayil and political liberals like Rawls and Quong hold positions
like this, as previously discussed.

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act only on the basis of doctrines that are neutral between different conceptions of flourishing. And
this is true even if there is a knowable and true conception of flourishing. Both cases seem like
plausible candidates for people who might reject including the true perfectionist ideal in the terms
of the original contract.
The issue, then, with permitting a perfectionist ideal to be included in the terms of the
original contract is that it still imposes unequal terms on people. While the perfectionist response
shows that the standard of the true perfectionist ideal does not elevate the position of those with
the perfectionist ideal, this is not sufficient to show that it is consistent with equality. For it remains
possible that such a standard lowers the position of those who dissent from the standard of
including the true perfectionist ideal. These parties to the original contract would have to
subordinate their own preferred conception of how the contract ought to be formulated due to a
standard that they might reject. This can be consistent with their equality only if their rejection of
the standard is inconsistent with people’s right to equal freedom. For the parties to the original
contract may dissent only if it is consistent with the right to equal freedom. There is no general
argument here, though, for why the right to equal freedom would require the inclusion of the true
perfectionist ideal.
[4.3] Can the parties be required to gamble on whether their ideal is true?
The second interpretation of the perfectionist response holds that parties to the original
contract might not agree to any particular true perfectionist ideal, but that they might agree to what
is essentially a gamble on what perfectionist ideal turns out to be true. That is, the parties might
agree to a contract where the true perfectionist ideal is part of the terms of the contract, but the
content of that ideal is not specified in advance. People then can gamble on whether their

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perfectionist ideal is the true one, and so will turn out to be the one that is included in the original
contract. Given that people should expect that their own perfectionist ideal is true—this is why
they hold it after all—accepting this gamble should be in each person’s interest. Correspondingly,
including the true perfectionist ideal in the terms of the original contract where this ideal is not
specified in advance might seem like a plausible way to include some perfectionist ideal in the
original contract.
A position like this has recently been developed by Collis Tahzib as a way of including
some perfectionist content within the Rawlsian original position.236 He suggests that if we assume
(i) that agents are interested in flourishing and (ii) agents know that some ways of life lead to more
flourishing and others lead to less, even if they do not know which is which, then “you would be
very fearful of ending up in the way of life that realizes a low degree of flourishing” and so “just
as it would be rational for you to select social institutions that insure against your ending
up…[with] the less flourishing way of life.”237 The result, he suggests, is that agents in the original
position—parallel here to the state of nature—would agree to a contract that included some
perfectionist content, and so generate something like the perfectionist constraint.
Suppose that (i) and (ii) hold for people in the original position as well—they would like
to flourish and they know that not all ways of life contribute equally to flourishing.238 Does it
follow that people in the state of nature should accept the gamble—accept that the terms of the
original contact include the true perfectionist ideal, whatever that may be? Perhaps more
236 Tahzib, A Perfectionist Theory of Justice, esp. chs. 3-4.
237 Tahzib, A Perfectionist Theory of Justice, 111
238 I do not know whether Kantians accept these premises generally, but they may. In either case, I don’t think the
argument works even if we accept them.

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particularly, does this alternative version of the perfectionist argument avoid the problems raised
in Section [4.2]?
I do not think so. Recall in Section [4.2] I pointed to two different characters that might
dissent from including some particular, true perfectionist ideal in the terms of the original contract:
Someone who would only agrees to include their own preferred perfectionist ideal, if any ideal is
to be included, and someone who thinks that the state should have nothing to do with flourishing
at all. Must either of these characters take the gamble?
It is unclear why either would. The first character might be tempted to take the gamble,
depending on how confident they are that their preferred perfectionist ideal is true, how odious
they find it to be under a different perfectionist ideal, and how sweet they would find it to be under
their preferred perfectionist ideal. But there is no need for them to do so—they might find it quite
odious to be under a perfectionist ideal they disagree with and so dissent from even the risk of it.239
Similarly, the second character has no general temptation to take the gamble, opposed as they are
to the inclusion of perfectionist ideals at all. It seems that the situation that Tahzib has raised,
howsoever applicable to the Rawlsian framework, does not extend to the Kantian contract situation
in the original position.240 The same kind of worries about the terms of the contract being decided
239 It may be that Tahzib’s argument, or a modified version of it to apply to the Kantian position, supposes that people
do not hold any particular perfectionist ideal in the state of nature—and so lack the ability to think of how odious it
might be to live in a society governed by a differing ideal. If so, then we might think that this worry goes away: No
one has a perfectionist ideal they are allegiant to, and so no one could worry about being subordinated to some ideal
other than that one. I do not think this avoids the worry: Perhaps people would prefer in the ex post situation to not be
in a situation where they are under an ideal they reject, even if it is the true one (they prioritize their integrity over
their flourishing, for example).
240 There are some differences between the Rawlsian framework and the Kantian framework that may be relevant for
this difference. For example, the Rawlsian framework has different assumptions about the commitments of the parties
to the contract, and Tahzib specifically argues that there can be certain kinds of perfectionist commitments. This allows
easier agreement on potential perfectionist ideals. Given the comparative thinness of the Kantian contract, it is unlikely
that similar agreement is possible.

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on unequal grounds—those who dissent being dismissed—remain even when thinking about
including perfectionist ideals simply as a kind of gamble.
Does this mean that Kantians must assume that people in the state of nature either do not
care about their flourishing or think that all conceptions of flourishing are equally good? I do not
think this follows for two reasons. First, people might value flourishing and acknowledge that
some ways of flourishing are better than others, but deny that it is appropriate to use whatever
means to achieve that end. These people might simply dissent from the idea that it is a matter of
legitimacy whether the state pursues perfectionist ends or that some citizens within a society
should be put into a position where they relate to the state as illegitimate simply because they
dissent from the perfectionist ideal. They may recognize that it is a serious consideration to put
some matters beyond the reach of politics, and hold that there is no need to make the conception
of flourishing that the state strives for to be one of these matters. For this reason, the dissent of
those in the state of nature is only a denial that it is a requirement on state legitimacy to promote
flourishing and does not entail that anyone thinks that flourishing is unimportant.
A second point is that, as I suggested in Section [3.4] and will argue in Chapter [5], nothing
in this chapter prohibits the ability of the state to attempt to promote flourishing. It just denies that
this can be a requirement at the bar of the legitimacy of the state. If so, then the question before
those in the state of nature is not whether the state may try to promote flourishing, but rather
whether it is appropriate to put a conception of flourishing into the original contract itself.
Rejecting the inclusion of a perfectionist ideal in the terms of the original contract make the state’s
promotion of flourishing a matter within ordinary political life, rather than a matter of the basic
legitimacy of the state. It is important, then, to not overstate the results of the Possible Dissent
Argument. The argument is about what the terms of the original contract, that is, what ideals the

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state must strive to achieve. It does not restrict whether it is permissible for officials or the state to
act on the basis of some other ideals—at least, so long as they are compatible with the terms of the
original contract.
For these reasons, I do not think that appealing to the truth of a perfectionist doctrine is
sufficient to ground its inclusion in the terms of the original contract. For there is no requirement
on the parties in the state of nature to give priority to a standard that requires the inclusion of true
perfectionist doctrines and, for a similar reason, there is no requirement on the parties that they
accept a gamble on what the true perfectionist ideal might be either. The requirement to accept
either position would be to make the terms of entering into the original contract unequal between
those in the state of nature, and so is incompatible with people as free and equal beings.
[5] Concluding remarks: Extension beyond perfectionism
This chapter has argued that Kantians should reject the attempt to resolve the
Indeterminacy Worry with the perfectionist constraint, that is, by appeal to some conception of
flourishing to restrict the range of legitimate options the state may pursue. It does this by
introducing the idea that the terms of the original contract—what determines the basic legitimacy
of the state—require that people in the state of nature condition can enter into the original contract
on equal terms. This can only be ensured if any person’s dissent, consistent with their status as a
free and equal being, is sufficient to exclude an ideal from being part of the terms of the original
contract. The result is that no perfectionist ideals can be included in the original contract.
It is notable, though, that nothing in my argument from Section [3] and [4] was specific to
flourishing. That is, the argument was general: It holds that for any ideal, whether perfectionist or
otherwise, so long as agents in the state of nature could dissent from it, the ideal should be rejected

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from setting the terms of the original contract, and so the ideal cannot restrict the range of
legitimate options the state may pursue. This would thus include ideals beyond those typically
identified as perfectionist, such as ideals about distributive justice, conceptions of what kinds of
freedom are valuable, and so forth. Those in the state of nature can dissent from their inclusion in
the terms of the original contract for much the same reason that they can dissent from the inclusion
of perfectionist ideals. And so, the argument extends just as well to non-perfectionist political
ideals.
What this chapter shows more generally, then, is that the Indeterminacy Worry cannot be
solved through restricting the range of legitimate conduct available to the state by appealing to
some further normative considerations. Given the argument in this chapter, any such appeal will
be inconsistent with thinking of people’s right to equal freedom as the fundamental normative
political concept, as outlined in Chapter [1]. I think the only way available to resolve the
Indeterminacy Worry, then, is through providing some method by which officials and citizens are
able to decide from among the various laws and policies that are permitted according to Kantians.
How this may be done while avoiding the problems in Chapter [3] is the task I turn to now.

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Chapter 5: Perfectionism in the Kantian state
Introduction
This chapter proposes a solution to the Indeterminacy Worry. Prior to presenting my
proposal it will be useful to recapitulate what has been established thus far. In Chapter [1] I outlined
a general Kantian framework that understands the right to live one’s own life in terms of people’s
right to equal freedom. One notable problem that raised—and has subsequently been taken up in
the rest of this dissertation—was that the right to equal freedom could be satisfied in a variety of
different ways. This led to the Indeterminacy Worry—the worry that the right to equal freedom
cannot be the fundamental normative political concept because it generates too indeterminate a set
of laws and policies and so fails to provide sufficient guidance for political decision-making. If so,
then it seems necessary that some other normative ideal, either instead of or in addition to the right
to equal freedom, must be fundamental. Chapter [2] explored how the right to equal freedom is
able to justify political authority, understood as a kind of juridical authority on the part of the state.
This set the standard that Kantians have for what the state’s purpose is.
Chapters [3] and [4] then considered different ways to possibly address the Indeterminacy
Worry. Chapter [3] considered whether Kantians can address the Indeterminacy Worry through
providing officials discretion in making their decisions using some considerations other than what
the right to equal freedom requires. My argument there was that Kantians currently lack a
principled way of explaining how officials could use such considerations in a way that solves the
Indeterminacy Worry. Chapter [4] then considered whether the Indeterminacy Worry could be
addressed through restricting the range of legitimate state action by adopting some further
normative considerations—such as considerations about flourishing—as constraints on the range

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of legitimate state action. My argument there was that the addition of any such further normative
considerations is incompatible with the Kantian commitment to people’s right to equal freedom.
The result is that the Indeterminacy Worry remains a problem for Kantian political thought
Here I propose a solution to the Indeterminacy Worry: Officials, or any authorized agent
exercising juridical authority, may use considerations that extend beyond people’s right to equal
freedom when those considerations ground the official’s interpretation of how to best satisfy the
requirements of the right to equal freedom.241 This reduces the domain of indeterminacy that
officials must contend with by permitting the use of considerations that are appropriate as a means
of interpreting the right to equal freedom. At the same time, there is a constraint on what
considerations may be used—only those that can function as part of an interpretation of the right
to equal freedom are permitted.242 This can explain why considerations that are inconsistent with
people’s right to equal freedom or irrelevant to it are impermissible, while considerations that are
subject to disagreement may be permitted. The result is that officials may appeal to a diversity of
different considerations—different conceptions of flourishing, of distributive justice, of equality,
of freedom—in making their decisions, while still acting legitimately.243
241 For my purposes here, I understand “using” or “acting” on a consideration as taking up the consideration as partially
justificatory for why they select the policy, that is, absent any countervailing reasons, the consideration is a sufficient
reason for the official to support or implement the policy. This may be contrasted with merely motivating
considerations, considerations that the official may take as personal reasons for doing it (e.g. because it will get me
reelected or such) but are not taken up as partially justificatory reasons. The division between these reasons in practice
is often difficult to discern, but I do think we have, as a general matter, the ability to make sense of such divisions.
242 While neither view is precisely like this, both Paul Billingham (“Can My Religion Influence My Conception of
Justice?” Critical Review of International Social and Political Philosophy. Vol. 20. No. 4. 2017. pp. 403-424) and
Peter de Marneffe (“Liberty, Liberalism, and Neutrality.” Philosophy & Public Affairs. Vol. 19. No 3. 1990. pp. 253-
274) present views that have some affinity to what is developed here.
243 A point that is important to keep in mind, but that will not be explored here, is what responsibilities officials have
to represent the views of their constituents, as opposed to simply acting on their own views. That is, as a simplification
I am treating these cases as solely about officials making decisions based on their own moral views. It may be, though,
that officials should make decisions based on the views of their constituents. Even so, the general point made here still
remains, for it still needs to be resolved whether their constituents may appropriately vote and seek representation on
the basis of their broader moral views.

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I outline and defend this proposal over the next three sections. In Section [1] I provide the
basic outline and intuitive basis for this proposal—that officials can be understood as interpreting
what the right to equal freedom requires. In Section [2] I then defend the idea that officials may
act on the basis of their broader moral views. In Section [3] I then specify the proposal further by
showing how officials can use their broader moral views to interpret what the right to equal
freedom requires and why this avoids the problems that are raised for other Kantian views. I
conclude in Section [4] with a broader view on what this proposal means precisely for the Kantian
view and the attractions that come with it.
[1] Outline of the proposal
My proposed solution to the Indeterminacy Worry is a version of the kind of solution
proposed in Chapter [3]. The solution operates through relying on the discretion of officials to
allow for more particular determinations of what the right to equal freedom requires. The main
development is that it provides a particular way of understanding the way in which officials are to
relate their activities to the right to equal freedom—as an interpretation of it. Further, this
interpretation can include features of an official’s broader moral viewpoint, including concerns
about what contributes to human flourishing. In this section I provide the basic intuitive case for
why we should think on the Kantian account that officials are to be understood as interpreters of
the right to equal freedom, and so provide an intuitive case in favor of my proposed solution.
[1.1] The authority of officials to make determinations of the right to equal freedom
The first question to address is why we should think that officials may appropriately act on
their interpretation of the right to equal freedom, an interpretation that some citizens from which

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some citizens could reject. This might be put in the follow way: The state is supposed to represent
an omnilateral perspective—it is a possible object of agreement that no one could dissent from
consistent with their right to equal freedom. The interpretation of equal freedom that officials are
to act on is a contestable interpretation—one that some could dissent from consistent with their
right to equal freedom.244 How can officials be authorized to act on the basis of such an
interpretation while the state is thought to represent an omnilateral perspective?
This worry is related to the argument laid out in Chapter [4]. There I argued that Kantians
should reject a perfectionist constraint on legitimate state action because people could possibly
dissent from determining the legitimacy of state conduct on the basis of any particular perfectionist
doctrine and so no such constraint could be included in the original contract. And yet in this chapter
I am proposing that officials may act on the basis of interpretations of people’s right to equal
freedom that could be dissented from. The question, then, is how officials could be authorized to
act on the basis of their own interpretation of the right to equal freedom when citizens could dissent
from that interpretation.
The answer to this worry is outlined in Chapter [2]. The purpose of the state is to resolve
the indeterminacy of the right to equal freedom in the state of nature. It does this through creating
a system of institutions that can authorize certain individuals—officials—to make more
determinate judgments about people’s right to equal freedom. That is, the precise way that the state
is able to fulfill its purpose is by allowing officials to exercise their own judgments. To deny that
officials are authorized to act on the basis of their own particularized judgment about how to
244 This kind of worry is raised in the literature on public reason and public justification. For many of these theorists,
the possibility of dissent, or more precisely reasonable dissent, is a central concern for the legitimacy of state conduct.
For some discussion see John Rawls (Political Liberalism. Expanded Edition. Columbia University Press. 2005) and
Jonathan Quong (Liberalism without Perfection. Oxford University Press. 2011).

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implement people’s right to equal freedom simply because some others may dissent from it would
be to contradict the role officials have in resolving the condition of the state of nature. People’s
right to equal freedom itself authorizes officials acting on their own judgments, even when they
may be dissented from.245
This is compatible with the argument in Chapter [4] because the argument there was
specific to setting the terms of the original contract, that is, setting down the ideals that determine
the basic conditions of legitimate state conduct. What is under consideration here is not a matter
of the basic conditions of legitimate state conduct. It is a matter of how officials may act. It follows
that the argument in Chapter [4] does not extend to excluding officials from acting on the basis of
more particular judgments of what the right to equal freedom requires. Given the fact that the role
of the state is to specify a conception of the right to equal freedom due to the indeterminacy of the
right, it follows that the considerations used in Chapter [4] do not extend to evaluating the conduct
of officials.
Officials, then, must be authorized to act on the basis of their own judgments about how to
secure the conditions for people’s right to equal freedom, even under conditions of disagreement.
What needs to be specified is how officials may legitimately form their judgments. That is, how
may officials exercise their discretion in fulfilling their role within the political system?
245 This is based on Thomas Sinclair’s response to the “insulation problem” for Kantian political philosophy (“The
Power of Public Positions: Official Roles in Kantian Legitimacy.” in Oxford Studies in Political Philosophy. Vol. 4.
Eds. David Sobel, Peter Vallentyne, and Steven Wall. Oxford University Press. 2018. pp. 28-52). See as well Kant’s
discussion in “On the Common Saying: That May be Correct in Theory but Not in Practice.” An especially good point
raised here is his discussion of when the supreme power may make laws directed towards the happiness of the citizens.
Kant holds that “this is not done as the end for which a civil constitution is established but merely as a means for
securing a rightful condition…A head of state must be authorized to judge for himself and alone whether such laws
pertain to the commonwealth’s flourishing, which is required to secure its strength and stability” (8:298). This suggests
that officials may use considerations about happiness (or flourishing) when they attempt to secure the rightful
condition itself. This is not particularly supporting the idea that they may use such considerations to interpret the right
to equal freedom, but it is compatible with it.

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[1.2] Officials as interpreters of the right to equal freedom
The first step to determining how officials may exercise their discretion in fulfilling their
role is to specify what exactly officials are doing in their role. I propose that we should understand
officials as interpreting what the right to equal freedom requires and that they are to act on the
basis of their interpretation of the right to equal freedom.246 Holding that officials act on
interpretations of what the right to equal freedom requires is simply a way of specifying the
particular way in which they form their judgments to resolve the indeterminacy found in the state
of nature. Such interpretations concern both an official’s understanding of people’s right to equal
freedom—what it means for people to be free and equal—and of what that right requires—in
particular, what is required given the official’s place within the current political system.247
The advantage of thinking about officials as acting on the basis of interpretations of what
equal freedom requires is that it establishes an intuitive way of understanding the relationship
between officials and their conduct. We have an independent, though perhaps contestable, idea of
what constitutes an interpretation and what kinds of considerations are appropriate to use in
forming one. This idea, furthermore, does not reduce the conduct of officials as merely choosing
246 Anna Stilz describes officials as acting on interpretations of the right to equal freedom (or, for her, justice) as well
(“Why Does the State Matter Morally?” in Varieties of Sovereignty and Citizenship. Eds. Sigal Ben-Porath and Roger
Smith. University of Pennsylvania Press. 2012. pp. 244-264.) as does Thomas Sinclair (“The Power of Public
Positions”). Arthur Ripstein’s discussion of officials’ need to exercise discretion also seems to require officials to
offer interpretations of what the right to equal freedom requires (Force and Freedom: Kant’s Legal and Political
Philosophy. Harvard University Press. 2009. ch. 7).
247 Insofar as my proposal concerns officials engaging in moralized interpretations of what the right to equal freedom
requires, it has some parallels to Ronald Dworkin’s discussion of law as an interpretative practice (Law’s Empire.
Harvard University Press. 1986). Ripstein suggests a tension between Dworkin’s project and the Kantian project,
holding that Dworkin treats the law as a means to some end that is specifiable independently of the law (e.g. an
egalitarian system) that officials are meant to approximate (Ripstein, Force and Freedom, 191fn12; Private Wrongs.
Harvard University Press. 2016: 21-22). Leaving aside whether we should read Dworkin this way, my proposal is
congenial to Ripstein’s worry. Officials may use their broader moral views only to answer questions that right raises
for what they are required to do, rather than treat the law as a means to satisfy their broader moral project.

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a law or policy that is consistent with people’s right to equal freedom, but rather imposes a more
substantive constraint on the means by which the official chooses the law or policy. Interpretations
are ways of making sense of a subject matter on the basis of standards provided internal to that
subject matter. And not all considerations that one may use are ones that can make sense of the
subject matter. In the case of officials making decisions, the subject matter for the officials is based
on their office’s mandate and its relation to the securing the conditions for the right to equal
freedom. The particular considerations that get included or excluded will depend on what may go
into an interpretation and what is part of an official making sense of what the right to equal freedom
requires them to do.
A question we might have is what such an interpretation might look like. While I explore
this question in more detail in Section [3], we might think of an interpretation in a preliminary way
as involving an official attempting to make sense of the right to equal freedom in a way compatible
with their broader moral views. For example, an official who adheres to Catholic doctrine might
attempt to explain how the right to equal freedom coheres with a Catholic worldview. This may be
done by recognizing that the dignity of humans as rational creatures with free will requires that
they must be allowed to freely enter into faith, and so it is outside the state’s purview to require
any particular religious doctrine.248 People, then, are free and equal insofar as their dignity as
rational free beings requires that they are not subjected to authority for the purposes of ensuring
some particular religious doctrine. At the same time, understanding the right to equal freedom this
way may make some policies more intelligible than they otherwise would be—for example, why
248 This is suggested by the Dignitatis Humanae (“Dignitatis Humanae” promulgated by His Holiness Pope Paul VI
on December 7, 1965. Accessed 16 April 2023.
https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_decl_19651207_dignitatishumanae_en.html.

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it might be valuable to allow public funding for private sectarian education (so that people have
the opportunity to study spirituality), insofar as such a scheme of education is a permissible
scheme.
This differentiates the proposal from the unrestricted position outlined in Chapter [3]. The
unrestricted position treats the fact that the right to equal freedom is indeterminate to permit
officials to simply pick one specification of the right to equal freedom over another for any reason
whatsoever. So long as they pick an appropriate policy the considerations they use to do so are,
largely, irrelevant. The official’s use of such further considerations is simply to allow them to make
some decision. By requiring that the considerations form part of an interpretation, it is not enough
that the considerations merely can be used to make a decision consistent with the right to equal
freedom. Rather the considerations have to be related to the right as a way of making sense of it,
as an interpretation, which restricts what considerations may be used by officials.
[1.3] How interpretations are possible
The role of officials in rendering the right to equal freedom determinate, as outlined in
Chapter [2], licenses the officials to act on the basis of some conception of the right to equal
freedom that could be dissented from. The immediate question to ask is how a more determinate
interpretation of the right to equal freedom is possible. That is, given that the right to equal freedom
is indeterminate, how is it possible for an official to have a more determinate interpretation? Where
does the determinacy come from?
The determinacy must come from what the official brings to their interpretation of equal
freedom. That is, the right to equal freedom is indeterminate because it just requires a system of
freedom established through rights in which no one is subject to domination by anyone else. There

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are many different ways that a system of rights could be established consistent with this goal. But
the goal of an interpretation is something more—the goal of an interpretation is to “make sense”
of the subject matter, the right to equal freedom. For the official, this means that they are
responsible for making sense of the right to equal freedom within the context of the larger world—
understood here to concern both the physical and moral worlds that people inhabit. What officials
bring, then, is their perspective on the larger world within which the right to equal freedom must
fit to make sense. When officials act to fit the right to equal freedom within the larger world, they
thereby give it more content and make it more determinate. For only some ways of understanding
the right to equal freedom will make sense in the context of the world as a whole.
What in particular, then, do officials bring to interpreting the right to equal freedom? Some
part of what they bring are empirical claims about the world—what will result in people
maintaining confidence in the government, what will pay for government programs, and so forth.
These empirical claims are, without doubt, part of any interpretation of what the right to equal
freedom requires. But these empirical claims will not be enough to resolve the problems for
officials. For the kind of indeterminacy surrounding the right to equal freedom for Kantians is not
about what effects laws and policies will have, but that there just in fact are a number of different
ways to secure people’s right to equal freedom.249 Officials will have to bring empirical claims to
interpret what is required in a given case, but even with empirical agreement we can expect
indeterminacy to continue.250
249 See, e.g. Ripstein (Force and Freedom, 168-172), Pallikkathayil (“Deriving Morality from Politics,” 137-140;
“Neither Perfectionism nor Political Liberalism,” 176-177), Stilz (“Why Does the State Matter Morally?”).
250 Ripstein Force and Freedom, 170; 202.

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For this reason, we should think that officials do not just bring facts about the empirical
world to bear on their interpretation of the right to equal freedom, but that they can also bring their
broader moral viewpoints as well. That is, people’s right to equal freedom does not encompass the
whole of morality. Questions of what makes life worthwhile and what is required for virtue, for
example, are not resolved by the right to equal freedom. But most officials will have their own
answers to these questions, based on implicit or explicit intuitive judgments they have made over
time. The right to equal freedom, then, may be understood as a part of various broader moral
outlooks.251 These broader moral outlooks constitute the officials giving determinate (or partially
determinate) answers to various moral questions beyond the right to equal freedom. Insofar as
officials try to render their broader moral outlook consistent with the demands of their role, they
will have to formulate a way to understand that role within the context of their broader moral
outlook, and vice versa. And so, they will have to formulate some general way of understanding
the right to equal freedom as part of their broader moral outlook. My proposal takes up this thought
and holds that it is this interpretation—their understanding of how the right to equal freedom makes
sense in light of their broader moral outlook—which they may use to make more determinate
judgments about how to exercise their authority.
One worry that may be raised here is that there will still be some indeterminacy even if
officials can use their broader moral views. After all, it is unlikely that there is ever a uniquely
supported course of action in political life. Perhaps this is so. But the problem is significantly
different. That is, part of what defines the right to equal freedom is that it is indeterminate—this is
251 This relies on the claim that Kant’s political philosophy does not entail his moral philosophy. For support of this
claim, see Thomas Pogge (“Is Kant’s Rechtslehre Comprehensive?” The Southern Journal of Philosophy. Vol. 36. pp.
161-187. 1997.), Allen Wood (“The Final Form of Kant’s Practical Philosophy.” in Kant’s Metaphysics of Morals:
Interpretative Essays. Ed. Mark Timmons. Oxford University Press. pp. 1-22. 2002), and Hodgson (“The Kantian
Right to Freedom”).

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a structural feature of the Kantian view. By contrast, once we allow people’s broader moral views
to be used in making political decisions, there is no in principle constraint on how determinate the
view can be. If so, then whatever indeterminacy results is the result of there simply being no further
considerations that can be relevantly applied to the situation: Officials can exhaust their reasons.
This avoids the worries raised for the restricted position in Chapter [3] insofar as considerations
about well-being can be used in political decision-making, and so citizens are not forced to accept
sub-optimal laws and policies simply on the grounds that they cannot point out the sub-optimal
nature of those laws and policies.
Another worry may be that this proposal is overly intellectualized because it relies on
officials separating their broader moral outlook from their interpretation of what the right to equal
freedom requires. This is not the case. Generally, officials will develop their broader moral outlook
and what the right to equal freedom requires simultaneously. Their views only need to be separated
out when they reflect on their decisions—for instance when they are asked to justify their decisions
to others in public forums. In these cases, it may be necessary for officials to be able to show how
their use of the broader moral view does constitute an interpretation of the right to equal
freedom.252 This is an advantage to the proposal here: Officials may treat the right to equal freedom
as a module within their more general moral views that structures those views in enacting laws
and policies, and so is compatible with officials acting primarily on an intuitive basis.253
This establishes the intuition behind my proposal: Officials are to act on the basis of their
interpretation of what the right to equal freedom requires, where this interpretation can include
252 I say “may” here because it may be the case that the explicit confirmation is unnecessary.
253 This idea of the right to equal freedom being a “module” bears some similarity to Rawls’s suggestion concerning
a political conception of justice (Political Liberalism, 11-14).

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their broader moral views. The remainder of this chapter will act to clarify and defend this
proposal. In Section [2] I will outline a general principle for setting constraints on the
considerations that officials may legitimately take into account. Then in Section [3] I will outline
how thinking of officials as acting on the basis of their interpretation of the right to equal freedom
satisfies that principle, and does so in a way that avoids the issues raised for other Kantian views
in Chapter [3].
[2] Constraints on the legitimate considerations for officials
Here I will argue that it is legitimate for officials to act on the basis of their broader moral
viewpoints. This will be established in two steps. First, I argue that officials may legitimately act
on a consideration so long as acting on that consideration is consistent with recognizing the status
of everyone as a free and equal person. Then, second, I argue that officials acting on the basis of
their broader moral views is compatible with recognizing everyone as a free and equal person. This
is not to hold that officials can act however they want on the basis of their broader moral view and
in Section [3] I will outline how thinking of officials as acting on their interpretation of the right
to equal freedom appropriately constrains how they act on their broader moral viewpoint.
[2.1] The Possible Assent Principle
The first step is to establish a general principle for determining what considerations
officials may act on. Here I propose the following principle: Officials may legitimately act on a
consideration so long as someone could assent to them acting on that consideration consistent with
recognizing the status of everyone as a free and equal person. This is not to hold that an official
could use the consideration in any way they so choose—as I articulated in Section [1] and as I will

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articulate in Section [3], there are further constraints based on how the consideration gets used.
This principle simply establishes whether the use of a consideration could possibly be legitimate.
Call this the Possible Assent Principle.
The Possible Assent Principle is a principle concerning what considerations are legitimate
for officials to take into account. To establish the principle, then, it is necessary to establish how
constraints on determining what considerations are legitimate for officials to take into account.
That is, on what grounds could people hold that it is illegitimate for officials to act on the basis of
some consideration?
As established in Chapter [4], the people’s right to equal freedom sets the basic conditions
for state legitimacy. For it to be the case that acting on the basis of some consideration is
illegitimate, it is thus necessary that it is inconsistent with the role that is assigned to officials on
the basis of the right to equal freedom. As discussed in Section [1], officials are meant to act “on
behalf” of the citizens in securing the conditions for their right to equal freedom. We cannot
understand an official acting “on behalf” of another person to secure their right to equal freedom
if the official is authorized to disregard people’s right to equal freedom. People cannot authorize
another person to deny their own humanity, at least not consistent with recognizing themselves as
having that humanity.254 For this reason, the right to equal freedom requires an official to rely on
considerations consistent with that right—as this defines the scope of the authorization from the
citizens for the official to act on.
Must officials only act on the basis of considerations required by the right to equal
freedom? Insofar, as the precise problem with the right to equal freedom in the state of nature is
that it does not provide determinate guidance, it is unclear what is meant by the claim that officials
254 Ripstein, Force and Freedom, 128-143.

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are to act solely on the basis of people’s right to equal freedom. One possibility explored in Chapter
[3] was given by the restricted position: In cases where the right to equal freedom is indeterminate,
officials ought to select laws and policies based on some lottocratic system of decision-making.
The problem with this, as outlined in Chapter [3], was that this is too implausible a system of
governance: It denies the ability of the people to participate in the political decision process and it
leads to insensitivity concerning how the laws and policies of the state affect the people. For this
reason, as argued in Chapter [3], some further considerations must be allowed.
Further, it cannot be illegitimate for officials to act on the basis of some considerations
simply because they conflict with some ideal other than the right to equal freedom. As established
in Chapter [4], the right to equal freedom is the sole ideal that determines state legitimacy. For
anyone to appeal to some ideal other than the right to equal freedom to hold that the use of a
consideration is illegitimate, that ideal would have to be part of what determines state legitimacy.
But this is inconsistent with the argument in Chapter [4]. For this reason, only the fact that an
official acting on some consideration that is inconsistent with the right to equal freedom is able to
determine that their acting on that ideal is illegitimate. That is, if an official must “exercise
judgment in determining what it [their mandate] requires in a particular situation, or how best to
carry out its purposes,” then this judgment cannot be assumed to be one that everyone agrees to as
“different laws, or different official decisions…could also have been authorized by law.”255
Kantians thus accept that “many details of legislation will depend on all kinds of factors that are
accidental to the standpoint of right.”256 The objection to an official using a particular consideration
must come from the incompatibility of officials fulfilling their role with respect to what is required
255 Ripstein, Force and Freedom, 202; 198.
256 Ripstein, Force and Freedom, 198.

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of them in the original contract, rather than whether the consideration they act on is consistent or
inconsistent with any further ideal.
The consequence of this argument is that the objection to an official acting on the basis of
some further consideration cannot come from the fact that people dissent from the consideration.
Rather, it must come from the fact that the use of the consideration is inconsistent with the official
acting on behalf of others to secure the conditions for the right to equal freedom.257
[2.2] Applying the principle to the broader moral views of officials
The next step is to establish that it is possible for officials to count as acting on behalf of
others even when they act on the basis of their own broader moral viewpoint. It has already been
established that the mere fact that an official acts on the basis of a consideration that citizens could
dissent from does not mean that they act illegitimately. What, then, might the possible objection
be?
It could be that the broader moral viewpoint of the official denies that others are free and
equal persons. This may be true for some moral viewpoints of some officials, but it is implausible
to think that every other possible moral viewpoint would be like this. This is because, as has been
noted previously, the right to equal freedom does not take up the whole of morality.258 If so, then
there must be some broader moral viewpoints that it is compatible with, and so are compatible with
seeing everyone as a free and equal person. Further, it is intuitively implausible that every citizen
257 This corresponds with Kant’s claims that it is only if “a public law is so constituted that a whole people could not
possibly give its consent to it (as, e.g., that a certain class of subjects should have the hereditary privilege of ruling
rank), it is unjust, but if it is only possible that a people could agree to it, it is a duty to consider the law just” (“On the
Common Saying,” 8:297). Kant’s constraint, that is, concerns only what people could assent to as a whole, not what
they would assent to. For the law is just “even if the people…would probably refuse the consent” in the actual state
(“On the Common Saying,” 8:297).
258 See fn.251.

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with a broader moral viewpoint thereby also denies that other citizens are free and equal persons.
This would be to make the Kantian view incompatible with citizens forming their own moral views
at all, contrary to how the Kantian project is typically understood.259 For this reason, it seems
plausible that while some broader moral viewpoints might be excluded because those viewpoints
deny that others are free and equal persons, it is unlikely that they all do so.
Alternatively, the objection might be that when officials act on the basis of their own
broader moral views, they infringe on the ability of citizens to live their own life how they see fit.
That is, by acting on the basis of some broader moral viewpoint and structuring the state’s laws
and policies on that basis, it might be thought that for that very reason the state thereby comes to
endorse and adopt that viewpoint itself.260 For example, when an official acts on the basis of some
religious doctrine, say Catholicism, then it might be thought that this means the state itself is
thereby turned into an instrument for Catholicism. But if many citizens reject Catholicism, or
whatever the broader moral view of the official is, then how can the official be said to act on their
behalf at all? How would the state represent a public perspective?
This worry comes down to differentiating between the purpose of the state and what
reasons officials use to exercise their authority. Whether the state represents a public perspective
is based on whether the state is guided by the ideal of securing the conditions for people’s right to
equal freedom—the terms of the original contract. This is what determines the legitimacy of an
259 The Kantian project is typically understood to allow people to develop and pursue their own conception of
flourishing. For example, Kant holds that “No one can coerce me to be happy in his way…instead, each may seek his
happiness in the way that seems good to him, provided he does not infringe upon the freedom of others to strive for a
like end” (“On the Common Saying,” 8:290). Each person, then, is permitted to formulate a conception of their own
flourishing and pursue it. See also Ripstein, Force and Freedom, ch. 2.
260 This kind of worry is brought up by a number of political liberals, such as Jonathan Quong (“Disagreement,
Equality, and the Exclusion of Ideals: A Comment on The Morality of Freedom.” Jerusalem Review of Legal Studies.
Vol. 14. No. 1. 2016. pp. 135-146) and Martha Nussbaum (“Perfectionist Liberalism and Political Liberalism.”
Philosophy & Public Affairs. Vol. 39. No. 1. 2011. pp. 3–45).

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official’s conduct. For this reason, there is an absolute priority for the official in securing the
conditions for people’s right to equal freedom. If an official were to disregard such considerations,
then the state would fail to represent a public perspective.
It is not the case, though, that in virtue of using their broader moral viewpoint, officials
thereby fail to provide absolute priority for securing the conditions for people’s right to equal
freedom. This follows from simply, commonplace examples of making decisions where there are
multiple, legitimate paths available. For example, suppose I am trying to drive to Kansas City.
There are a variety of paths I could take to do so, each of which might be roughly as good as the
others in terms of achieving this goal. But it may be that there are different features of some routes
that suggest them as better or worse in other ways. It may be that one route is more scenic, another
has better restaurants, and a third passes by some interesting curiosities. Using these considerations
to decide between the different options is not to subsume the purpose of the trip to any of these
considerations. Each of them would be absolutely defeated if they were inimical to me driving to
Kansas City. They simply are a way of selecting between the different options.
Similarly, when officials use their broader moral viewpoints in deciding between the
different legitimate ways of securing the conditions for the right to equal freedom, the reasons they
use to select one way of securing it as opposed to others are simply ways of selecting between the
different options. They do not become part of the fundamental purpose of the state or a permanent
commitment on the part of the state, but rather simply another contingent feature of the state’s
condition.261 As has been established in Chapter [2] and Section [1.1], officials must be authorized
261 This position therefore avoids Martha Nussbaum’s worry of the state expressively subordinating some of the
citizens (“Perfectionist Liberalism and Political Liberalism”). Her worry is that the “government will state, every day,
that a different view, incompatible with yours, is the correct view, and that yours is wrong” (35). But this is not so on
the view presented here. Rather, the government will simply state that some view, incompatible with yours, has won
out in political contests and so is being used to make these decisions, but that this is a contingent matter. Nussbaum’s

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to make these more particularized decisions and, as argued in Chapter [3], they must be able to
appeal to some further considerations in doing so. The fact that they appeal to their broader moral
views is simply a mechanism by which they go about fulfilling their role, and not a claim about
the commitments of the state.262
For this reason, there is no general objection on the part of citizens to officials acting on
their broader moral views when fulfilling their roles. Rather, the objection will have to be based
on how officials go about acting on their broader moral views when fulfilling their roles. That is,
even though appealing to their broader moral views may be permissible, it is not the case that
officials can appeal to them in just whatever way they desire.; it is necessary to specify how they
are to use their broader moral views in fulfilling their roles.
[3] Interpretation, broader moral views, and relevancy
[3.1] Interpretation and relevancy as a constraint on officials
I argued in Section [1] that we should think of officials as providing an interpretation of
what the right to equal freedom requires. The significance of thinking of officials as providing an
interpretation is that it helps to fix our ideas of how the considerations they appeal to—such as
their broader moral views—are to be related to their activities. In particular, thinking of officials
as interpreting what the right to equal freedom requires places a condition of relevancy on how
they use further considerations. That is, when officials use their broader moral viewpoints to
view is applicable instead to the view presented by the perfectionist constraint discussed in Chapter [4]—where the
perfectionist ideal is part of the foundations of the state through setting the terms of the original contract.
262 This is what differentiates the position here from the perfectionist constraint in Chapter [4]. Here I argue that it is
permissible for officials to use their broader moral views, but that no particular moral view is required as a matter of
legitimacy. For this reason, determining the state’s conduct on the basis of these broader moral views remains a part
of ordinary political life, and so a matter of political contest.

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interpret what the right to equal freedom requires, they are not simply trying to pursue some moral
goods—officials may not act “to make the world better in ways unrelated to [their] mandate.”263
Without requiring that the considerations are used in a relevant way, the problems of the
unrestricted position outlined in Chapter [3] recur: Officials could select interpretations of the right
to equal freedom on the basis of what is personally beneficial to their own interests, and so use the
office for their own personal benefit. Thinking of an official as providing an interpretation helps
to see how their broader moral viewpoint is structured by the right to equal freedom.264
In Section [1] I argued that the right to equal freedom is part of the normative world that
people must fit within their broader moral views. These broader moral views function as a way of
“making sense” of the concept given the normative world as a whole.265 The question, then, is
what does it mean for the broader moral viewpoint to “make sense” of the right to equal freedom?
The answer is that insofar as the right to equal freedom is indeterminate concerning what
is required in a given case, it thereby leaves open questions. These are questions that are raised
and left open by the right to equal freedom, part of what explains why it is underspecified. For
example, in Chapter [2] I noted that the precise system of property is not specified by the right to
equal freedom—there could be more or less market-based systems of property in place. We might
think that this is because there are certain questions that are needed to specify the system of
263 Ripstein, Force and Freedom, 202
264 See Pallikkathayil’s discussion of how the consideration that “tattoos are degrading” may be used to ground a
prohibition on tattoos (“Neither Perfectionism nor Political Liberalism,” 178-179; see also 182-183, 183fn19).
265 Of course, people can, and probably should, interpret their broader moral views in light of people’s right to equal
freedom—these ideas can be mutually reinforcing. The idea here is that officials, and citizens more broadly, need to
engage in a kind of reflective equilibrium to bring their broader moral views and the right to equal freedom in line
with one another. For discussion of reflective equilibrium see John Rawls (Justice as Fairness: A Restatement. Ed.
Erin Kelly. Harvard University Press. 2001: 29-32) and Norman Daniels (“Reflective Equilibrium,” Stanford
Encyclopedia of Philosophy. Ed. Edward N. Zalta. 2020. Last accessed 15 April 2023.
https://plato.stanford.edu/archives/sum2020/entries/reflective-equilibrium).

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property rights, but that the right to equal freedom does not itself fully address: How secure should
people be against falling into conditions of poverty, and potentially be dominated? How should
this be traded off against the ability of people to use their property as they see fit? How should the
costs of externalities be distributed within a society? What counts as an externality? A broader
moral viewpoint could be brought forth to answer, or help answer, some of these questions by
providing a more specific theory on some of the relevant features picked out here. On this picture,
a consideration would count as relevant if it is part of an official’s broader moral picture that
addresses a question concerning what the right to equal freedom requires the official to do that the
right to equal freedom leaves unanswered, that is, leaves indeterminate.266
The focus here is on questions that are unanswered, rather than just indeterminacy itself,
to emphasize that the right to equal freedom provides a structure for what is addressed. That is,
the fact that a consideration somehow bears on what policy to select from among the permissible
range is not what licenses the use of the consideration. For that would be to treat the question the
official is addressing as something like: “What is the way of specifying the right to equal freedom
that gets the best results with respect to metric X?” While this might be a sensible question,
answering it does not constitute an interpretation. Rather, the questions the official must address
are questions that arises from the right to equal freedom itself. The official’s broader moral
viewpoint is supposed to contextualize the right to equal freedom, and not simply seek to maximize
266 Stilz also raises the need for considerations to be “relevant” in terms of addressing a question that the right to equal
freedom (or justice) poses (“Why Does the State Matter Morally?” 254-256). The notable difference is that her account
does not address what further considerations might also count as relevant for Kantian officials, but rather only
discusses what is central to the right itself—freedom, equality, and independence. It is thus unclear how Stilz’s account
extends to what further considerations officials may use when the right to equal freedom is indeterminate.

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the returns with respect to some other metric.267 In this sense, the official’s broader moral
viewpoint does more than simply select a possible specification of the right to equal freedom.
This means that the range of considerations based on an official’s broader moral outlook
that are relevant is limited: Not all considerations bear on the reasons why there is a concern about
the situation from the perspective of the right to equal freedom and so not all considerations are
relevant. Even when some considerations are relevant, they may not be relevant for all issues at all
times.
[3.2] Sample Cases
The way that this relevancy condition works may be illustrated using a case concerning the
provision of public funds for private sectarian schools.268 I take it that people’s right to equal
freedom requires that children develop into adults with certain minimal skills so that they may be
independent of others—they must have the skills necessary to set and pursue their own goals. This
raises various questions. What skills need to be developed? Of those, which ones should the state
try to ensure, as opposed to parents? What are the appropriate ways for the state to go about
ensuring the development of such skills consistent with having a free populace—for instance, what
267 It may be the case, of course, that under certain circumstances it is appropriate to simply seek to maximize the
returns with respect to some metric because that is relevant to the question being addressed. The point here is that this
is not a general feature.
268 I believe this issue to be particularly pertinent within the United States given the recent history of Supreme Court
cases which have increasingly taken the side that the failure to fund private sectarian education, at least when any
private education is offered public funding, is a form of religious discrimination, see the majority opinion in Carson
v. Makin. The view presented here roughly approximates the kind of view Justice Stephen Breyer presents in his
dissent in Carson v. Makin concerning the “looseness in the joints” that emerges regarding the competing values of
religious non-discrimination and anti-establishment. For recent jurisprudence concerning religious freedom and antiestablishment concerns see Trinity Lutheran Church of Columbia v. Comer 582 US_2017, Espinoza v. Montana
Department of Revenue 591 US_2020, Kennedy v. Bremerton School District 597 US_2022, and Carson v. Makin 596
US_2022.

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are the ways for the state to go about providing funds for religious schools without becoming
entangled in the activities of religious institutions?
These questions may be addressed through a person’s broader moral outlook. Take a
legislator, Beatrice, who is deeply religious and holds that the ability to develop spiritually is
valuable. She therefore thinks that children should have the opportunity to develop their
spirituality. This, plausibly, is satisfied by some form of religious education. We might leave it to
parents to pursue such education, but not all parents have the skills, funds, or time to do so. It
seems, then, that the state may provide support to secure the opportunity for children to acquire
such experiences. Beatrice thinks, though, that for the state to require a religious education would
force the state to adopt an explicit religious perspective that would entangle religion with the state.
A better option, one that allows for greater freedom, would to allow parents to choose to enroll
their children in a religious school. Thus, providing funds for children to attend private sectarian
schools would allow children to develop a valuable skill without entangling the state with religion.
This is a judgment that not everyone need share—for instance, another legislator, Alfred,
may think that “spirituality” inhibits people’s ability to develop an autonomous self. While there
is good reason to not prohibit religious education, there is also good reason to not promote it.
Further, Alfred thinks that there is no way for the state to distinguish between “religions” and
“cults,” insofar as they both simply represent a kind of superstitious thinking, and that the state
should definitely not lend legitimacy to cults by funding their educational institutions. For these
reasons, Alfred thinks that spirituality is not among the skills the state should try to provide the
opportunity for and so thinks that providing public funds for private sectarian education would be
a mistake.

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Neither view, I assume, is implausible. Nor is either view in conflict with the right to equal
freedom. Finally, neither case is about simply getting a desired result—e.g. maximizing the number
of religious persons. Both Beatrice and Alfred use their considerations to address problems raised
by what right to equal freedom requires the state to do—what skills children need to develop, who
should develop them, and how the state could develop them consistent with the right to equal
freedom more broadly. Both cases reflect the broader moral outlook of the particular legislator
informing their judgment about what the right to equal freedom requires without reducing the right
to their broader moral outlook. These cases support the claim that on my proposal there are
considerations that no one is required to take into account, but that still may be used by officials
in their decision-making.
Contrast these cases with ones that fail to count as a relevant consideration for an
interpretation. Suppose Clarice supports the provision of funding because it would help her achieve
salvation or because her family owns many private sectarian schools that stand to benefit. We
should think that these considerations are irrelevant—the questions the right to equal freedom
poses are not about what will support Clarice’s goals, but what will support a general public goal,
and such considerations do not even purport to concern that matter. Those considerations are not
relevant and so through acting on them Clarice simply represents a private perspective. Similarly,
if Clarice opposes the funding because of anti-Catholic animus this might not be “irrelevant,” but
it fails to be consistent with the right to equal freedom because she denies the equal standing of
Catholics.
Besides cases that clearly satisfy or fail to satisfy the proposed criteria there may be cases
that are less clear-cut—considerations that seem relevant, but that are intuitively questionable. I
cannot exclude the possibility that such difficult cases exist. All I can do is suggest that when we

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see cases that are intuitively questionable, we should interrogate why the case is questionable. The
explanation may come down to whether the consideration in question is in fact relevant for
people’s right to equal freedom. Our judgments on these matters may go either way: Our doubts
about a consideration’s appropriateness may turn out to be a parochial bias, or it may reveal how
we should fill out what it means for a consideration to be relevant. Which way our judgment goes
will likely be a result our attempts to bring various cases together under a common scheme that
explains why certain considerations are appropriate while others are not. Such borderline cases,
then, may be no more than elements to consider in moving forward with this proposal, rather than
counterexamples to it.
[3.3] On the prima facie plausibility as a Kantian view
This understanding of how officials make determinate judgments may appear jarring at
first. Kantians often hold that there is something problematic about officials using their personal
moral beliefs in exercising their authority. It thus seems surprising to come to a conclusion that
allows officials to use their personal moral belief when exercising authority. But I think that it is
less jarring than one might expect. To begin, the proposal only holds that it is permissible for
officials to use their broader moral outlooks when exercising authority—that it is not a basic
condition on legitimate state conduct that officials not use their broader moral outlooks. This is
compatible with holding that it is, in many situations, better for officials to not use their broader
moral outlooks and perhaps better for the state to institute rules against officials using at least some
of their personal moral views in some cases, and instead have officials act on the basis of more
widely shared considerations or more “neutral” considerations. For example, in a society with a
history of religious strife, it may be prudent for officials to avoid relying on their broader religious

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views, because the presence of such views in politics may harken back to prior religious strife, and
so be alienating and threatening to citizens.269 Alternatively, using widely shared reasons might
have positive benefits, such as allowing citizens to experience political life as a common project
with others.270 These are just a couple of examples for why there may be reasons to make it a nonbasic condition on the legitimate exercise of authority that officials only use certain considerations.
The proposal here is just that it is not a basic condition on legitimacy for the state that it excludes
such considerations, but rather it is a practical matter for states to address depending on the history
of the state and nature of its current political system.
I think conceptualizing the kinds of considerations that can be used in political life this
way—with a broad range of potentially legitimate considerations that may be cut down through
the ways in which the public culture of a society develops and the kinds of decisions that the
society makes—is intuitive. It seems to be a part of our ordinary politics that officials and citizens
discuss and debate the appropriate terms of engagement within politics. My proposal thus reflects
an important aspect of our political lives—that we not only debate about what policies should be
implemented, but also about what considerations we should use to make those decisions. My
proposal allows an interesting possibility by allowing for a plurality of different public cultures,
with different kinds of considerations, to develop within the state. The state may thus be responsive
to a rich variety of moral reasons and concerns through the broader moral viewpoints of its officials
and citizens may influence those views, or try to restrict their use in certain contexts, rather than
269 Rawls identifies the history of religious strife as a central element in the development of a political liberalism as a
way of avoiding the conflict that emerges from that history, see Political Liberalism, xxvi-xxviii; 159.
270 See Kyla Ebels-Duggan, “The Beginning of Community: Politics in the Face of Disagreement.” The Philosophical
Quarterly, Vol. 60 No. 238, 2010, pp. 50–71. RJ Leland, “Civic Friendship, Public Reason.” Philosophy & Public
Affairs, Vol. 47 No. 1, 2019. pp. 72–103; RJ Leland and Han van Weitmarschen. “Political Liberalism and Political
Community.” Journal of Moral Philosophy, Vol. 14 No. 2. 2017. pp. 142–67; Andrew Lister, Public Reason and
Political Community. Bloomsbury. 2013.

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only to those reasons that play a role in the state’s fundamental justification as is typical for Kantian
political philosophy.271
The proposal is also less jarring when we turn to examine the cases of what considerations
are actually permitted. The conditions placed on what considerations are appropriate to use make
the proposal fall much more within the domain of our ordinary politics. Cases such as Clarice’s,
who simply imposes her religion on others as a means to salvation, are clear cases of when the use
of an official’s broader moral outlook is problematic. But the need for an official’s considerations
to be relevant for the right to equal freedom and consistent with recognizing people’s status as free
and equal exclude these obviously problematic cases. It is less clear that in Beatrice’s and Alfred’s
cases the considerations allowed are intuitively problematic. The invocation of a person’s values
to explain why one policy should be implemented over another, where those values are plausible
and relevant, seems to me like a relatively unobjectionable exercise of political power. Or, at the
very least, it is unclear why such exercises of authority must be deemed impermissible or
illegitimate.
[3.4] On avoiding the pitfalls of other Kantian views
The final point to establish for my proposal is that it does not fall afoul of the problems that
beset other Kantian views in Chapter [3]. The problems outlined there were that the views either
(i) fell into either the restricted or unrestricted positions, (ii) assumed away the indeterminacy of
the right to equal freedom, or (iii) relied too much on intuition, without any effective way of
determining whether various considerations may be used. I believe my proposal here avoids each
of these problems.
271 Cf. Pallikkathayil, “Neither Perfectionism nor Political Liberalism,” 196.

184
The position clearly does not fall into either the restricted or unrestricted positions, and so
avoids (i). The restricted position held that officials could only use those considerations required
by the right to equal freedom, and so resulted in officials needing to decide between laws and
policies on the basis of some lottocratic method. My proposal avoids that by allowing officials to
appeal to various other considerations. The unrestricted position held that officials could use
whatever considerations they liked to select between laws and policies, so long as they were
compatible with people’s right to equal freedom. My proposal avoids that by, first, requiring that
the considerations used pass the Possible Assent Principle, and, second, requiring that the
considerations are used only insofar as they are relevant to a question raised by the right to equal
freedom. As discussed previously, this means that officials do not use these further considerations
to select between otherwise legitimate laws and policies, but rather to form an interpretation of the
right to equal freedom, and select on the basis of that interpretation.
I also have not assumed away any indeterminacy of the right to equal freedom, avoiding
(ii). That worry held that using a metric of a fair or equitable distribution of burdens required
Kantians to adopt a more determinate conception of the right to equal freedom than they typically
do.272 My position avoids this issue because the determinacy comes not from the right to equal
freedom itself, but rather from what officials bring to the right to equal freedom. This allows that
the right to equal freedom itself can still be recognized as indeterminate, while still providing for
the possibility of clear state action.
272 This suggests that conceptions of the Kantian project which hold that the right to equal freedom involves some
kind of distributive scheme, e.g. the equal distribution of negative liberty, might not suffer from the same kind of
indeterminacy. For a model along these lines, see Kyla Ebels-Duggan, “Critical Notice: Force and Freedom: Kant’s
Legal and Political Philosophy.” Canadian Journal of Philosophy. Vol. 41. No. 4. pp. 549-573. 2011. At the same
time, to the extent that there is a determinate distributive scheme, we may worry about the ability of such
interpretations of the Kantian project to justify the state’s authority as outlined in Chapter [2], since that justification
makes reference to the fundamental indeterminacy involved in setting up a system of rights.

185
Finally, unlike the view presented by Ripstein concerning intuitions about what further
considerations are “public” and what are “private,” my position provides a relatively principled
stance on what considerations are appropriate to use, avoiding (iii). That is, the Possible Assent
Principle gives a clear standard on what considerations can even be potentially legitimate to use
and the ideal of an interpretation of the right to equal freedom gives a method through which those
considerations are to be used—that it addresses a question raised by the right to equal freedom.
These features of my proposal provide a relatively clear methodology for thinking about whether
a particular consideration counts as being “public” or “private” in the right kind of way. While
there will still be unclear cases, my proposal provides a way to think through them in a productive
way, rather than relying purely on our intuitions about what the cases are like.
[4] Concluding remarks
I have provided a proposed way by which Kantians can address the Indeterminacy Worry:
By allowing that officials may use various further considerations, including their broader moral
views, to interpret what the right to equal freedom requires. This allows Kantians to both hold that
the right to equal freedom is, in itself, indeterminate, but also that it can be granted greater
specificity by officials. This fits with the general Kantian picture of the way in which the state is
supposed to address the indeterminacy in the state of nature: By authorizing people to be able to
make more particular judgments. The explanation here is just how that can be done in a way
consistent with people’s right to equal freedom.
To conclude this dissertation, I want to reflect on the broader significance of this proposal.
Why does it matter that officials can take into account their broader moral views when making
policy decisions?

186
The primary practical upshot concerns the character of the political arena that is permitted.
The Kantian position is often thought of as being a relatively stark position in terms of what
considerations officials can take into account. We are told repeatedly by Kantians that the state has
a single purpose, to secure the conditions for the right to equal freedom, and this is the sole end to
which it is to be directed. The impression one gets from these discussions is that the Kantian state
is monomaniacally focused on a single value, to the exclusion of everything else. Correspondingly,
the impression as well is that the political arena within a proper Kantian state is one in which
citizens and officials are monomaniacally focused on pursuing that value, or the extent to which
they are not is some kind of defect, although perhaps understandable given the nature of humanity.
The political arena for Kantians, then, looks like it is a uniform affair.
I think this is an unfortunate part of the view. As discussed in the introductory chapter to
this dissertation, it is plausible that the political arena can hold a diversity of different views within
it. Even when we can, and should, expect that there are some underlying shared values that should
guide the state, we also can, and should, expect that there are many other values that people use in
making political decisions. People are not monomaniacally focused on the right to equal freedom,
people think of their moral lives more broadly and inclusively, with the different elements of it
bleeding into one another. Moreover, people think diversely about morality. This is something that
Kantians should expect and celebrate: A central feature of their view is that the right to equal
freedom allows people to pursue their own ends. The formulation of these ends, of what they want
to pursue to flourish, inevitably involves people making their own moral judgments about a variety
of matters. This diversity of views and the inevitable bleed between differing elements of people’s
moral systems seems to require us to acknowledge the possibility, and the permissibility, of a
political system wherein this kind of diversity can be accommodated. The monomaniacal focus on

187
the right to equal freedom, then, is something that seems to be an intuitive cost for the Kantian
view.
What is argued for in this chapter, and this dissertation more broadly, is a way of avoiding
this cost without giving up the central insights of the Kantian position. It allows Kantians to
provide a complete explanation of the foundational moral notions of the state in terms of the right
to equal freedom and to constrain the state’s fundamental purpose in terms of securing the right to
equal freedom. And at the same time, it allows for a diversity of views to enter into the political
arena, not as a kind of understandable defect that might afflict any political system, but rather as a
natural and useful part of the Kantian view.

188
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Abstract (if available)

Abstract Contemporary Kantian political philosophy generally holds that the legitimate scope of the state’s authority is to secure the conditions for people’s equal freedom—their right to pursue their own conception of flourishing consistent with the equal right of others to pursue theirs. A problem raised for this conception of political authority is that the right to equal freedom is too indeterminate—there are many different ways that the state can realize equal freedom, and so equal freedom is unable to guide political conduct. In this dissertation I explore different ways of addressing this indeterminacy and propose a solution—that officials may appeal to their broader moral views, including views about human flourishing, to form more determinate interpretations of equal freedom. This highlights how certain anti-perfectionist foundations for the state can be made compatible with the state still being sensitive to the kinds of considerations that perfectionists are interested in.

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Creator Garofalo, Paul (author)

Core Title Toward a more perfect liberalism: perfectionism in Kantian political philosophy

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Philosophy

Degree Conferral Date 2024-08

Publication Date 06/25/2024

Defense Date 06/07/2024

Publisher Los Angeles, California (original), University of Southern California (original), University of Southern California. Libraries (digital)

Tag indeterminacy,Kant,liberalism,OAI-PMH Harvest,perfectionism,Philosophy,political philosophy

Format theses (aat)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Lloyd, Sharon (committee chair), Quong, Jonathan (committee chair), Jimenez, Felipe (committee member), Schroeder, Mark (committee member), Wedgwood, Ralph (committee member)

Creator Email pjgarofa@usc.edu,po.goffs@gmail.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-oUC1139970FJ

Unique identifier UC1139970FJ

Identifier etd-GarofaloPa-13142.pdf (filename)

Legacy Identifier etd-GarofaloPa-13142

Document Type Dissertation

Format theses (aat)

Rights Garofalo, Paul

Internet Media Type application/pdf

Type texts

Source 20240625-usctheses-batch-1173 (batch), University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the author, as the original true and official version of the work, but does not grant the reader permission to use the work if the desired use is covered by copyright. It is the author, as rights holder, who must provide use permission if such use is covered by copyright.

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA

Repository Email cisadmin@lib.usc.edu