On political responsibility in post-revolutionary times: Kant and Constant's debate on lying

Abstract

In “On a Supposed Right to Lie from Philanthropy,” Kant holds the seemingly untenable position that lying is always prohibited, even if the lie is addressed to a murderer in an attempt to save the life of an innocent man. This article argues that Kant's position on lying should be placed back in its original context, namely a response to Benjamin Constant about the responsibility of individual agents toward political principles in post-revolutionary times. I show that Constant's theory of political responsibility, which sanctions the lie, is not based on expediency, but on principled realism, whereas Kant endorses a position that I describe as ‘political juridicism.’ This analysis enables us to uncover two plausible Republican theories of political responsibility in post-revolutionary times behind an apparently strictly ethical debate.

Keywords

Kant Constant responsibility lying revolution Right

Imagine that a friend pursued by a murderer takes refuge in your house. The murderer knocks at your door and asks where your friend is. What would you say? In On Political Reactions (PR), a 1796 pamphlet, Benjamin Constant (1988a) attributes to an anonymous “German philosopher” the view that we should always tell the truth, even if this means sacrificing the life of our friend. He opposes this stark position to what he expects is his reader's intuitive stance, namely, that we should lie to save our friend. Having an absolute duty not to lie would make society impossible, Constant maintains, because it would make us unable to make judgments concerning the specific circumstances in which we apply principles. Instead, we have the responsibility to address the specific situation at hand in all its complexity. Lying is therefore the responsible attitude.

This striking thought experiment, imagined in the immediate aftermath of the Terror in France, brings many conundrums of post-revolutionary politics to the fore in an everyday experience endemic to troubled times. The experience of freedom in post-revolutionary France was disorienting. Revolutions are invariably followed by reactionary periods, in which counter-insurgencies intensify social unrest. Individuals who fought for revolutionary principles in 1789 wondered if they owed their allegiance to a fledgling government that made compromises in order to institute itself. In PR, Constant wrote to support the cause of the Directory, the freshly settled government aiming to establish liberal constitutional principles, against both Jacobin and reactionary tendencies. It offered a guide for French citizens perplexed by the difficulty of remaining faithful to revolutionary principles in the aftermath of the Terror.

Karl Friedrich Cramer, a fervent supporter of the French Revolution who published Rousseau and Sieyès in Germany, translated Constant's text in a journal named Frankreich the following year. He pressed Kant to respond on the ground that he was the not-so-mysterious “German philosopher” mentioned by Constant, and certainly hoping Kant would take position on post-revolutionary politics. Kant was then supposed to be also a supporter of the Revolution, yet had kept mostly silent on the question, to the great despair of his radical followers (Maliks, 2012). Accepting Constant's description of the case in all its details, Kant (1996a) responded a few months later, with an article entitled “On a Supposed Right to Lie from Philanthropy” (SRL). Yes, the philosopher sternly declares, you should tell the murderer where your friend hides. The death of your friend as a consequence of your true statement would be regrettable, Kant argues, but a lie would be much worse – nothing less than the vitiation of the source of law itself (SRL 612; 8:426).

Kant's short text on lying took on a destiny of its own, by being separated from its political context. As an isolated text, Kant's response proved both opaque and puzzling to its readers. In particular, Kant scholars (Korsgaard, 1986; Paton, 1953; Schapiro, 2006; Varden, 2010; Wood, 2008) have wondered repeatedly why Kant would espouse such a position, when he argues elsewhere in his works that we can lie in self-defence (Kant, 1963: 228; VE 27:448). Why does he require the truthful agent to be an instrument of evil when it could be avoided? Kant's infamous position on the case of the murderer generated many controversies. Yet one point of consensus emerges. There is something remarkably odd about Kant's position in the case of the murderer, even from the point of view of Kant's theory itself. Why Kant would choose a rigorist position that his own ethical theory could prove partial or wrong does not seem to find an answer within the frame of what I call an “ethical reading”, i.e. a reading supposing that this text asks what is the right ethical response to the murderer's inquiry.

As an appendix to Kant's text, Constant's position on lying is either ignored or dismissed as “expedient,” suggesting that for Constant what matters is whether an action is advantageous to the liar, and not whether it is just. The charge of expediency hides the obvious question: why would Constant endorse such a view when he devoted his entire career to constitutionalism? It would indeed be strange for him to be committed to fighting against arbitrariness by the institution of constitutional laws, and yet endorse the idea that we can take expedient decisions regardless of the law. Both Kant and Constant's views on lying seem mysterious taken as a pure question of ethics, outside of their legal and political context.

In this article, I argue that Constant and Kant's positions on lying should be placed back in their original political context, which was a debate about the responsibility of individual agents toward political principles in post-revolutionary times.¹ This contextual analysis frees us from the traps of the ethical reading. It enables us to make sense of both Constant and Kant's views on the case of the murderer as two distinct, yet plausible attitudes towards the realisation of the Republic in post-revolutionary times. While their views on political responsibility may extend beyond the question of action in post-revolutionary times, it is the specific problem of the establishment of a legitimate government in the aftermath of the French Revolution that provides the terms of their position.

Constant and Kant propose, I argue, two distinct theories of political responsibility. I show that we can revisit Constant's theory of political responsibility as principled realism rather than expediency. Principled realism in this sense does not entail, as political realism generally does, that power or interest is what directs politics. Rather, for him, my political responsibility towards the Republic entails not only my political duty of supporting the political principles at the basis of a just government (this is the principled dimension of this theory) but also my active disobedience, possibly using extra-legal means, when faced with circumstances that prevent the realisation of just principles (this is the realist dimension). By contrast, Kant holds a position, which I call political juridicism. The duty of post-revolutionary individuals is to secure the conditions of Right (Recht) that can make the coexistence of individual freedoms possible. This position may lead to accidents, as the death of the friend in the case of the murderer, but it would prevent the bloodbath of the Terror.

On Constant's supposed expediency

In “On a Supposed Right to Lie from Philanthropy,” Kant dismisses Constant's position in the case of the murderer as Convenienz (“expediency”) (SRL 613; 8:427). By doing so, he inaugurates an enduring tradition of describing Constant as expedient and opportunist (Benton, 1982). The familiar story has Kant arguing that we have to fulfil our duty, regardless of circumstances and consequences, while Constant urges us to follow the most advantageous course of action taking circumstances and outcomes into account. Benton, for instance, accuses Constant of being an opportunist sold to the Directory, arguing that principles can be bent in order to preserve society (Benton, 1982: 138). The first position is implausible to common sense, as verified by most readers' reluctance to tell the murderer where their friend hides. But it has the aura of German philosophical rigor. The second position is plausible, yet has the stigma of ungrounded bon sens (common sense).

Yet any close examination of Constant's argument reveals that this initial description is not self-evident. Acting out of expediency suggests that one is trying to get out of one's duty in order to satisfy one's interest. One is not aiming to do the right thing, but rather to act in the most beneficial manner for oneself. Philanthropy, Kant suggests in the title, would be the reason invoked by the liar. Philanthropy, Kant argues, is an affective, i.e. “pathological” motivation for action, and its invocation is a self-deceptive excuse for making oneself an exception to moral principles (Kant, 1998; GM 4:398). Indeed, in the Groundwork (GM), Kant analyses the tendency of common reason to engage in moral casuistry: we quibble about the requirements of our duty because our inclinations push us to place our actions under a rule of exception (GM 4:424).

Kant's accusation against Constant, however, rings false for three reasons. First, according to Constant's example, I would lie not in order to escape trouble, but to save my friend's life. I would lie because I believe it is the right thing to do. Second, even if I were to lie because doing one's duty is uncomfortable, there is no personal gain in lying. I have no self-interested reason to do so. One could even argue that I would probably have more to lose by lying than by telling the truth. If the murderer realises that he is being tricked, he might retaliate. Lastly, there is no reason to argue that, for Constant, my motivation to act is out of an affective feeling of “philanthropy” rather than the necessity to act out of respect for the general law that one ought to help people in danger. My reason for action could be described as my duty to help someone in dire need.

Kant visibly aims to belittle Constant's position, especially because Constant insists that expediency is a “disastrous” and irresponsible position in PR. For Constant, “if there are no principles, nothing is fixed: there are only circumstances, and everyone is judge of circumstances” (RP: 138). Defining arbitrariness as “the absence of rules, of limits, of definitions, in a word, the absence of anything precise” (RP: 142), Constant agrees with Kant that the abandonment of principles leads to the reign of arbitrary subjectivity. It is precisely when passions rage in moments of political crisis, i.e. when people are the most likely to give up their principles, that we have to hold on to principles even more firmly, because principles are the foundation of law and justice. The central aim of PR is to “rehabilitate principles” against those who believe that they should be bent in non-ideal circumstances (RP: 151). It is a political manifesto, so to speak, in favour of principles and against expediency.

Constant thus holds a set of positions remarkably close to Kant's. Just like Kant, who dismisses the pseudo-realism of those who argue that general principles are good in theory but not in practice, Constant rejects the accusation of being “an abstract dreamer,” because he argues that adhering to principles is the key to justice in difficult times (RP: 131). Like Kant (1991a: 61), Constant criticises the very notion of an impracticable principle: if principles appear to be in conflict, it is only because one has not figured out how to apply them properly. We can apply seemingly impracticable principles by discovering “the intermediary principle, which is necessitated by the particular combination at hand” (RP: 132). The first example he takes is straightforwardly political, as the general topic of the book demands. It is the traditional problem of popular sovereignty in a large country. Constant maintains that it is possible for a large country to be democratically founded even if individuals cannot equally take part in the election and deliberation processes. Representation is the mediating principle that reconciles the general principle (every person ought to participate equally in legislation) and the problem created by a particular circumstance (the country is too large for direct participation to be possible). Difficult practical problems have principled solutions if one works hard enough on providing the intermediary principles, which integrate apparent “exceptions” into theory (RP: 133). Presenting Constant as endorsing expediency is thus an important distortion of his view.

Constant's defence of political principles

Rather than a mere circumstantial support of the Directory, Constant's pamphlet is a sustained theoretical analysis of the concept of ‘political reaction,’ which is defined as a passionate movement against the law meant to counteract the arbitrary application of principles in post-revolutionary times. According to Constant, revolutions are caused by a discrepancy between ideas and institutions. When actual political institutions do not fit the spirit of the time, a need to restore the harmony between ideas and institutions arises: this is the revolution itself. The instant institutions and ideas are in accord with each other, revolutions should stop. Yet ideas and institutional change have a movement of their own, and in the impetus of revolutionary transformations, they may continue their course in an extreme direction. Therefore, in the course of a revolution, ideas and institutions fall out of joint. Such discord provokes a counter-movement, which may be against institutions, ideas, or the men who tried to implement them: this is the reaction (RP: 95). During these two periods (revolution and reaction), principles are bandied about and applied to justify exactions and crimes. Principles thus tend to lose their force of legitimacy in the eyes of the common people subjected to the acts wrongly justified in their name (RP: 98).

Constant's goals are thus three-fold: to show that (1) there is a need for a stable government endorsing the principles of the Revolution, yet putting a end to the oscillation between revolution and reaction, which prevents the realisation of these principles; (2) joining this government is not a matter of expediency but of allegiance to principles; and (3) individuals have a political responsibility towards the stabilisation of such a government. Citizens should hold fast to the principles of the Revolution and fight against arbitrariness, no matter how intense regrets, resentment, and vengeful desires may be. Otherwise they risk devolving into an anarchic state worse than the injustice the revolution meant to overturn.

In the series of texts published in the years 1796–1798, including PR, Constant does not oscillate in his position on political principles. He unambiguously affirms his republicanism (Fontana, 1991; Kalyvas and Katznelson, 2008; Rosenblatt, 2008: 49–53). De la Force du Gouvernement Actuel, for instance, praises the Republican government created by the Convention, which Constant considered faithful to the principles of the Revolution (Constant, 1988b: 47). We may wonder then how Constant's principled endorsement of the French Revolution and the Republic led him to affirm that one ought to lie to the murderer. What is the principle underlying the lie to save my friend's life? Constant writes:

It is a duty to tell the truth. What is a duty? The concept of duty is inseparable from the concept of right. A duty is that on the part of one being which corresponds to the rights of another. Where there are no rights, there are no duties. To tell the truth is therefore a duty, but only to one who has a right to the truth. But no one has a right to the truth, who injures others.²

Constant does not set out to develop a conception of right or duty in his early writings. Yet he argues that rights can be suspended when agents violate certain conditions, such as the basic rules of the social contract. Constant could be arguing two different things. He could be saying that the murderer forfeits all rights by his murderous intent. By the very fact that the murderer does not respect the fundamental rights of others, he would not command any duty from us: he would be a man without rights. Or he could be arguing that the murderer forfeits the rights that are instrumental to his enterprise of killing. While this text does not allow us to decide absolutely, it is unlikely that Constant would argue the former on the basis of his other writings (Constant, 2003).³ Indeed Constant's constitutional work does not point toward the idea that a man could be stripped from all his rights. Therefore Constant most certainly argues that we have no duty to tell the truth to the murderer, because in his murdering intent, he forfeits the rights that would be instrumental to his action. The ground of his reasoning is thus neither expediency nor opportunism. The lie is principled: we are relieved from the obligation to follow our duty towards someone whose very intent is to use this obligation to harm others. Individual agents are placed in the situation of deciding which principles ought to be applied according to circumstances. In the case of the murderer, the agent realises that the principle of truthfulness does not apply because its conditions are vitiated when the other agent tries to use his truthfulness to kill.

Constant's position is not easy to pinpoint because he does little to theorise it explicitly himself, though his early writings show broad consistency. Scholars have described his position as “moderate” (Craiutu, 2012: 200–215)⁴ or “pragmatic” (Vincent, 2011: 78–79) to emphasise both his staunch commitment to principles and his “fluid” means to realise them. While the murderer case was fictive, Constant demonstrated his stance in real political cases during the years of the Directory (Craiutu, 2012: 213; Vincent, 2011). For instance, in a speech to the Cercle Constitutionnel on 16 September 1797, he maintained that, for the sake of saving the constitution, in the specific moment of the coup of 18 Fructidor, there was a need to use anti-constitutional means (Constant, 1797). This position was not expedient, for Constant, because it was the means to promote just principles that were compromised by reactionary movements. Not taking real circumstances into account would account to a form of utopianism that would condemn the promotion of just principles.

Constant's position in SRL, I argue, can be described as a form of principled realism. Principled realism in this sense does not entail, as political realism generally does, that power or interest is what directs politics. Instead, for Constant, the realisation of just principles can happen only if one carefully takes into account all the real obstacles that counter them. It is a form of realism because it rejects the idea that we should treat agents with wrongful intents (here the murderer) the same way we would treat other agents. Constant's method is not that we ought to bow to power. Rather, when faced with the fact that the application of just principles, which are ordinarily right, would be compromised by real obstacles, we ought to assess whether there are well-grounded reasons to apply other principles that would promote justice in the end. For him the appropriate response to non-ideal, or realist, circumstances is not ad hoc: it is rather to figure out the intermediary principles that ought to direct my actions in order for principles of justice to be realised.

This realism is principled in two ways. First, Constant believes there ought to be principles rather than just ad hoc arguments to justify one's actions. Second Constant argues that the end of a realistic attitude is the promotion of principles themselves, and not power or interest. Principled realism differs from expediency, because it does not say that I should act in the way that most benefits me, my interests or specific preferences. Rather, for Constant, there are general principles that ought to be promoted. In this period of his intellectual career, they comprised the principle of popular sovereignty, the existence of a stable political order and the respect of equality and freedom.

In PR, Constant invites us to consider whether general moral principles ought to be applied in the unusual and morally confusing circumstances of post-revolutionary politics, when faced with people with harmful intents. A murderer, just like Robespierre and the members of the Committee of Public Safety during the Terror years, do not ask innocent questions. Individuals are thus permitted to resist when they can reasonably consider that the conditions of Right are vitiated: principled realism demands that individuals consider that there are political evils, even sometimes coming from the government. Other pamphlets of the same period can confirm Constant's position. In Des Effets de la Terreur, Constant insists that one should not confuse the Terror with the Republic. When there is a terrorist government, one ought to use ones' own moral judgment to assess whether the pure respect of principles, acceptable in ordinary circumstances still holds when asked by murderers. From the point of view of Constant's principled realism, the answer is a resounding “No”.

The ethical reading of the case of the murderer and its limits

In 1797, Kant was the most famous philosopher in Europe. It is thus hardly surprising that Constant would have used him as a foil to illustrate his defence of principles. What he may not have intended is that Kant's response in “On a Supposed Right to Lie from Philanthropy” would overshadow his own text and become a counterpoint to Kant's ethics. In what follows I argue that the excision of Kant's text from its political context proved detrimental to its interpretation. Taken as a moral problem, Kant's position remains implausible. I first present the traditional “ethical reading” of Kant's text and turn in the next section to what it misses: Kant's position on political duty in post-revolutionary times.

I call “ethical reading” the large amount of scholarship based on the assumption that “On a Supposed Right to Lie from Philanthropy” is concerned with an ethical problem.⁵ This scholarship finds itself faced with a conundrum. Kant's short text seems to leave us empty-handed in front of evil. Strict Kantian deontology seems to lead to the absurd consequence of demanding and justifying the denunciation of a friend's hiding-place to a murderer. The first gesture of the “ethical reading” proponents is thus to try and understand whether Kant justifies absolute truthfulness as an application of his ethical doctrine of duty.

In the Groundwork, perfect duties are derived from the imperative of acting in a way such that the maxim of our action can be thought without contradiction as a universal law of nature (G 33; 4:424). Telling the truth is a perfect duty, because it is impossible to even conceive a maxim of lying that could be universalised without contradictions. It would thus seem that I have to tell the truth even to the murderer at the cost of my friend's life because as a perfect duty it suffers no exception. Furthermore, Kant insists throughout his ethical writings that lying is the greatest violation of the duty to oneself and diminishes my moral worth (MM 6:429). Yet Kant denies this possible argumentative strategy since he clearly states in a footnote that what is at stake in the case of the murderer is not the violation of a duty to oneself (SRL 612; 8:426).

Another possible response could be that the agent finds herself torn between two conflicting duties, both calling for her response. The duty of truth telling appears at a moment when another important duty, the duty of mutual help, comes into play. In such a case, the Metaphysics of Morals holds that the “stronger ground of obligation prevails” (MM 17; 6:224). The duty of mutual help is merely an imperfect duty (G 33; 4:423), which could explain why it is lower in the hierarchy of obligations. One could thus explain Kant's position by arguing that my first responsibility is towards truth telling and not towards helping my friend. If there is an apparent conflict of duties, in fact the higher duty of telling the truth explains why I should prefer not to wrong mankind at the cost of accidentally harming my friend, rather than wronging mankind and not harming my friend. Yet, this way out of the problem does not hold either, because Kant does not choose this argumentative path. Indeed the text mentions neither an obligation to help the persecuted friend, nor a possible conflict of duties.

The ethical reading is thus faced with many difficulties when trying to reconcile SRL with the rest of Kant's ethical writings. Paton, for instance, tries to show that SRL is a “temporary aberration” and that Kant offers his well-considered views on the question of exceptions to practical rule elsewhere (Paton, 1953: 190–203).⁶ This first strategy seems to be legitimated by Kant himself, who writes in his Lectures on Ethics that lying can be used as a weapon of self-defence to protect one's money (VE 27:448). A second strategy, adopted by Korsgaard and Schapiro, is to use Kant against Kant. It shows that even though Kant's answer is in fact justifiable within his system, his ethics provides the resources for a more plausible attitude towards exceptions in practical rules (Korsgaard, 1986; Schapiro, 2006). Korsgaard argues that if one follows the first formulation of the categorical imperative (the “Formula of Universal Law”), the lie against the murderer would in fact be permissible, and possibly, obligatory. Rejecting Kant's strict prohibition of lying as the only formulation of his own theory, Korsgaard calls for finding an implicit two-dimensional theory within Kantian ethics, which would provide “special principles for dealing with evil” (Korsgaard, 1986: 327). Schapiro arrives at a similar conclusion on different grounds. Her strategy is to show that the constitutive function of moral rules “is corruptible when background conditions are defective.” She argues that Kantian deontology, if interpreted correctly, can be saved from rigorism (Schapiro, 2006).

None of these “ethical readings”, however, explain Kant's position in the case of the murderer. Rather, they all recognise that it is a sort of outlier in his ethical theory. Either one rejects it entirely or accepts it as a less attractive version of other possibilities present in the rest of Kant's work. We can explain Kant's position, however, if we turn towards the solution that he himself suggests by pointing away from an ethical understanding of his text. As noted by Allen Wood and several other scholars in his wake (Mahon, 2009; Ripstein, 2009; Weinrib, 2008; Wood, 2008), Kant claims that the only relevant point of view in the case of the lie to the murderer is the point of view of Right (Recht) (SRL 612; 8:426). This remark, however, initially raises more questions than it answers: how can he claim that lying to the murderer would be contrary to Right? And how does referring to Right make Kant's position more plausible?

Let us start with the second question. Kant took a clear position on the legality of lies in the Metaphysics of Morals, a text published the same year as SRL. The domain of Right concerns only the external relations of free actions (MM 24; 6:231). Duties of right, that is “duties for which external lawgiving is possible” (MM 31; 6:239), are thus less demanding than duties of virtue, as they do not concern the end that the person sets for herself. In the Doctrine of Right Kant recognises that it is legally permissible to lie under some conditions.

An individual is authorized to do to others anything that does not in itself diminish what is theirs, so long as they do not want to accept it – such things as merely communicating his thoughts to them, telling or promising them something, whether what he says is true or sincere or untrue or insincere (veriloquium aut falsiloquium); for it is entirely up to them whether they want to believe them or not (MM 31; 6:239).

An important conceptual distinction emerges here: a lie is a mere falsiloquium when it is an intentionally untrue statement, which is not contrary to a duty of right. By opposition a mendacium (defined in 6:238 fn) is an untruthful statement that is contrary to the duty of Right.

An immediate conclusion can be drawn. From the point of view of Right, not all lies are equally reprehensible. The main feature of a mendacium is that it affects the possessions of the person who is lied to or about, “e.g. the false allegation that a contract has been concluded with someone, made in order to deprive him of what is his” (9fn. 31; 6:238). In SRL as in MM, a lie in the legal sense implies that someone be harmed by believing the statement is true: it ought to be a falsiloquium in praejudicium alterius (SRL, 8: 426).

Furthermore, there are circumstances that would make it acceptable to lie even concerning possessions. Kant accepts for instance that if you are asked where your money is with a knife to your throat, it is permissible not to tell the truth because you would not be committing a mendacium. Lying is permissible since the person asking has the intent “of making a wrong use of the truth” (VE, 27:447). The conditions for a lie to be a mendacium are thus more demanding than for a mere falsiloquium, though the latter remains morally repugnant.

We are now led to the disconcerting conclusion that from the point of view of Kant's Doctrine of Right, lying to the murderer could be perfectly permissible. This lie does not bear on a legal contract or does not aim to “deprive the murderer of what is his.” Indeed, it does not make sense to say that the victim is “his” in any legal sense nor that he is “harmed” in any meaningful way. Furthermore, as Kant himself notes, I am placed in the position to be “compelled” to answer the murderer, who presumably is threatening me in some way (SRL 8:426). Since the murderer is free to believe me or not, and since I do not lie about something that belongs to him, I have the external freedom to lie according to Kant's doctrine of Right. Surely it is morally repugnant, but it is still legally permissible. Why would Kant not choose to state as much instead of saying that I ought to tell the murderer where my friend hides? Moreover this analysis of a mendacium according to Kant leaves us uncertain about the initial question: what is strictly ‘legal’ in my lie to the murderer, since it does not refer to any possession he has and since I am compelled to answer him? We clearly need another explanatory frame to make sense of Kant's own construction of the case.

Is Kant arguing that political lies are impermissible?

One way of making sense of Kant's insistence that the case of the murderer is a question of Right and not of ethics, is to argue that Kant is in fact thinking about a broader political problem that was endemic in France in the aftermath of the Revolution: political lies. In the context of the Terror, denunciations were legions and ordinary citizens were faced with dilemma of the sort Constant and Kant are describing. This is the interpretation Allen Wood proposed in order to explain this otherwise mysterious text (Wood, 2008: 240–258). One central piece of evidence supporting Wood's rationale is Kant's characterisation of the statement to the murderer as an Aussage (Deklaration), a term which he deems to be technical and to refer to legal statements, such as witnessing in tribunal or statements to the police (Wood, 2008, 241). Indeed Kant writes that by lying “I bring it about, as far as I can, that statements (declarations) in general are not believed, as so too that all rights which are based on contracts come to nothing and lose their force; and this is a wrong inflicted upon humanity in general” (8:426, my emphasis). For Wood, Kant is not wrong in arguing that we ought to tell the truth in any official declaration. Rather what is strange is why Kant would hold that I owe a “declaration” to the murderer, since there is nothing at first sight that makes this situation an official one. This can be explained, Wood argues, if we take into account the political context of his response to Constant: “the issue that appears to have really concerned both Kant and Constant is the duty of politicians and statesmen to be truthful in their official declarations.” (Wood, 2008: 249). Because Kant absolutely refuses to recognise the legitimacy for politicians to lie (TPP 8:370-86), he reacted to Constant's text by insisting on the necessity not to lie in all official declarations and went as far as taking the case of my response to the murderer as akin to such a situation in order to counteract Constant's supposed endorsement of political lies.

There is, however, a key objection to this otherwise attractive interpretation. Constant does not mention political lies in his treatise. The context in which he attacks Kant's position in PR is not related, closely or even remotely, to the question of political lies. As far as Constant mentions anything related to lies (calumnies by journalists or government acting through arbitrary means), it is to reject these actions adamantly and absolutely (PR: 121; 127; 144–146). Reading PR, Kant would have no reason to believe that Constant would favour political lies, a topic he is not concerned with in PR and which he could not agree with since he denounces the lack of principles that have sullied political life in the aftermath of the Revolution. As I argued earlier, the central issue of this pamphlet is elsewhere: the political responsibility of individual citizens and whether or not they ought to give allegiance to the Directory – not whether politicians could use deception.

As we can safely assume Kant had read Constant's text, and understood its argument, Wood's interpretation does not have any textual or contextual basis, and appears speculative, even if he is right to suggest, following Holmes (1984), that deception in politics was a serious concern at the time. We thus need to find another explanation to Kant's strange assumption that my statement to the murderer would be akin to an official declaration. My contention is that Kant is directly responding to Constant's problem as he read it in Cramer's translation: what is the nature and scope of individual responsibility towards post-revolutionary governments like the Directory, i.e. legitimate yet not entirely just governments? Kant rightly interprets this question as asking what the relation between Right and politics should be. This is why he directs SRL towards this point:

Right must never be accommodated to politics, but politics always accommodated to right (SRL 614; 8:429).

The central issue behind the case of the murderer is whether the realisation of just political principles may or may not involve bending the rules of Right. Kant is clear in his response: no. We can now understand why Kant takes such an odd position concerning lying to a murderer. He aims to argue that politics ought to conform to Right absolutely, just as I ought absolutely never to lie.

Kant's political juridicism

I call Kant's position that politics ought always to conform to Right, political juridicism. This position appears clearly in the form that his theory of imputability takes in SRL. At first sight Kant argues, as he does elsewhere (MM 6:431), that I can be held responsible only for the bad consequences of my wrong actions, and for the good consequences of my meritorious actions (MM 19; 6:228). He argues that we bear responsibility for the consequences of our action, but in an asymmetric manner. While SRL is in line with the theory of imputability of MM, his theory takes unusual features in the case of the murderer if we look at its convoluted description:

It is still possible that, after you have honestly answered “yes” to the murderer's question as to whether his enemy is at home, the latter has nevertheless gone out unnoticed, so that he would not meet the murderer and the deed would not be done; but if you had lied and said that he is not at home, and he has actually gone out (though you are not aware of it), so that the murderer encounters him while going away and perpetrates his deed on him, then you can by right be prosecuted as the author of his death (SRL 612; 8:427).

Kant repeatedly insists in this text on the legal dimension of this case, going as far as stating counter-intuitively that we could be held liable for the murder of the friend if we had lied and the murderer happens to find him in the corridor: “such a well-meant lie can, however, also becomes by an accident (casus) punishable in accordance with civil laws; but what escapes being punishable merely by accident can be condemned as wrong even in accordance with external laws” (SRL, 8:426-7). Surely, that we could be held responsible for lying to a murderer in an attempt to save a life seems rather implausible. But we should be attentive to what makes this statement remarkable: not that we ought not to lie in a “declaration' (as Wood rightly notes), but rather that Kant insists that my situation vis-à-vis the murderer is akin to an official one in which I ought to be truthful. This is remarkable because, the murderer, once again, is not an officer or an official representative of the state.

This insistence on the dimension of Right, and my supposed responsibility if I were to lie, can make sense only if we connect it to the idea of political juridicism. Kant wants to insist that my political responsibility is strictly contained within the realm of rightful actions. This can be spelled out in two propositions: (1) I hold no responsibility for the wrong or illegal actions and intents of others; (2) I ought never to use extra-legal means in order to restore justice.

The theory of imputability in SRL shows that I am relieved from responsibility concerning the death of my friend if I follow the general law of truthfulness. The reason my responsibility appears limited here (since it is striking that in SRL, and contrary to what seems an obvious Kantian tenet, Kant does not suggest that I would have an additional responsibility towards helping my friend who is in danger) comes from the primary political responsibility I hold: maintaining the existence of a rightful order which is the condition of possibility of all to co-exist as free individuals.

Kant's rationale does not therefore point towards the categorical imperative, as the “ethical readings” hold. It points towards the Universal principle of Right presented in the Doctrine of Right (MM 6: 230-231). The Universal principle of Right, contrary to the categorical imperative, concerns the co-existence of external freedoms, which is only possible under the condition of a system of Right. My first political responsibility is thus towards the maintenance of this rightful order. The first consequence of this is that only rightful actions can be at the basis of a right political system.

According to the Doctrine of Right, the co-existence of external freedoms is possible only if there are public legal institutions in place. Individuals cannot therefore choose to disobey these legal institutions by deciding that they are vitiated in one way or another. They certainly cannot decide not to obey merely because their political states are not entirely just, since states necessarily look imperfect in contrast with the social contract as an idea of reason. In SRL, how I ought to act in response to a murderer is not different from how I ought to act generally, just like how I ought to act in an imperfect state is not different from how I ought to act in a Republic. The reason for this is that I have to comply with the particular way in which the conditions of Right are set in the constitution of the state I find myself in. As a consequence individual agents should keep the only guidance they have to judge whether their actions are politically correct: whether they can universalise the maxims of their action, which they can do only if they respect Right.

What Kant fears in Constant's suggestion is thus twofold: (1) that Right should not be taken as absolutely necessary as the basis of politics; (2) that agents – such as the man answering the murderer – would be authorised to make their own sovereign decision concerning the basis of a rightful order, including obeying the state or not. For Kant, society is made impossible if people can rightfully justify not fulfilling their promises, rebel against contracts, or fail to be truthful in order to help their friends or increase their own happiness (TP 8:298). For Kant, Constant seems to be arguing that individuals ought to be entitled to take the law into their own hands if the conditions of the contract are vitiated or if the state is not perfectly just (Korsgaard, 1997). If individuals can judge whether the conditions of Right obtain, as Constant maintains, contracts are made uncertain and individuals are placed in the situation of making their own private laws (MM 6:312). While I have argued that his accusation of expediency is unjustified, we can see how Constant's realist defence of principles is a challenge to Kant insofar as Constant argues that an individual may judge that the conditions of contract are invalid. For Kant, Constant tries to escape the realm of Right into a defence of subjective judgment.

This analysis can also help us make sense of another rather strange dimension of Kant's text: why Kant would go out of his way to imagine that it is possible that my friend slipped out of my apartment and that the murderer would kill him in the corridor, making me thus responsible for his deed. Kant wants to counteract Constant's seeming invitation to his readers to use extra-legal means to achieve goals or realise principles that they believe may succeed in the future. Because the future is just an accident when not following rightful actions, individuals should not take it in consideration if it means acting against their duty to follow the law. While this holds true in general for Kant, post-revolutionary times would give him a strong reason to emphasise the indeterminacy of consequences of any action that is done with seemingly good intent, and that can turn into disastrous decisions, as the French Revolution turned into the Terror.

Kant's political juridicism and Constant's principled realism: Two roads to the republic

We should now return to the “ethical reading” of SRL to show why it is unsatisfactory. The ethical reading wondered why Kant would leave us empty-handed in front of evil and would allow the sacrifice of an innocent for the sake of obeying the categorical imperative. We saw that no ethical reading was able to make sense of Kant's position from the standpoint of Kantian ethical theory itself. As an ethical problem, it seems implausible that I should not save my friend when the murderer has the obvious intention to use my truthfulness to commit an evil act.

As a political problem about Right in post-revolutionary times, Kant's answer is better grounded. The individual who tells the truth to the murderer acts within the extent of the political responsibility that the state required of him. He fulfils his duty of the good citizen who maintains the order necessary for external freedoms to co-exist. In times of uncertainty, he prevents the noxious development of the idea that individuals may take the law into their own hands in the name of realising the highest good of mankind. The “rightful” road to republicanism may entail accidents, but it prevents large-scale violence associated with anarchy. Holding on to principles and respecting contracts are the surest path to the Republic.

Kant's position may seem unconvincing for several reasons, often noted by his readers. It is unclear why individuals, just by lying to a murderer, would destroy the basis of a rightful condition. It is also implausible to say that someone who lies to a murderer in order to save a friend would take the law in his own hands in the same way a group of individuals plotting a coup would. But according to the contextual analysis I have proposed, a political reading helps give more credibility to Kant's otherwise strange position. In the extreme confusion of the aftermath of the French Revolution, people who lie to murderers also plot coups or support them, as Constant's own position demonstrates. Countering Constant's realist position, Kant offers a political position in which juridicism is the only way to secure a just and stable order.

We are tempted to wonder whether the case of the murderer could enlighten the vexed question of Kant's endorsement of revolutions. Kant never endorsed the French Revolution in writing, though he expressed the convoluted thesis that the change of regime in France was right because it was not technically a revolution. Since the King had convoked the Estate-General, he had given sovereignty to the people (MM 6:341-2). There is thus no French “Revolution” properly speaking. This legerdemain enables him to praise the progress of the French people in terms of justice up to a point. On the other hand, he maintains that all revolutions are illegitimate, to the great despair of his radical followers, who found this position unsuitable to the liberal principles he had endorsed in his many writings (Maliks, 2012).

It is important therefore to consider the limited scope of the position that Kant is taking in SRL. It is beyond the purview of this essay to analyse Kant's view on revolutions, since the short text on lying is not about a right to revolution in general.⁷ Rather it provides Kant's position on the responsibility of individuals in post-revolutionary times toward the realisation of principles. I have argued that Kant's position could be described as a form of political juridicism. The realisation of a just political order cannot happen without individual endorsement of Right as not only the end but the means towards the end (Ripstein, 2009: 333). From the point of view of the individual, taking the law into one's own hands would be the worst course of action in post-revolutionary times. This is neither a condemnation nor an endorsement of the French Revolution. Rather it is an answer to the specific question Constant asked. How can we bring the revolution to a close without jettisoning the principles of the Revolution? Kant's answer is that we ought to respect the principles themselves unconditionally and always, even in uncertain times.

Kant's position in SRL is compatible with some recognisable features of his political writings. It is tempting to argue that this text outlines a conservative tendency in Kant's political thought. Since the first condition for a society to exist is the respect of its laws by all citizens, individuals have a duty to be truthful, fulfil their duty and obey authority. When they do so, they are relieved from responsibility towards the political framework of their action and they hold no responsibility for evils committed by others. This is true whether men are under an ideal government, or a non-ideal one, because there is no special non-ideal theory for dealing with the latter case, just as there is no special theory of action to deal with the murderer's questions. Individuals bear no responsibility for the advent of a Republic if this advent requires illegal actions in present circumstances. By contrast they would be responsible for chaos and anarchic consequences if they ventured into uncertain political action out of a supposedly philanthropic desire to realise republican principles. According to this reading, the case of the murderer would be read as praising strict legalism and obedience.

This conservative reading, however, would be a misunderstanding of the scope of SRL. Other texts show that Kant's political juridicism does not mean that my individual responsibility is limited to obeying the law. Kant argues, for instance in What is Enlightenment?, that in order to become my own master, I ought to participate in public discussion over possible reforms of political order. In the Metaphysics of Morals Kant insists that individuals have a duty to realise the conditions of a just political order. Men have a duty to establish a Republic (Kant, 1991b: 112; 8:349), even though they have no right to implement them violently (MM 96: 6:320; Wilson and Monten, 2011). For others, Kant embraces the idea of productive resistance (Muthu, 2014) and cannot be considered a quietist justifying individuals' lack of political commitment. In this sense, Kant's political juridicism draws a difference between what I can legally be forced to do and the domain of moral responsibility, which places the constant demand on me of realising the Kingdom of Ends.⁸

For Kant, Constant was too immersed in the circumstances of French post-revolutionary politics and he forgot the most crucial point about the advent of a just political order. Republics have to be achieved by legal means. In contrast with Constant's detailed account of political circumstances in France in PR, Kant's excision of the case of the murderer from the current French state of affairs sheds light on his understanding of post-revolutionary politics. It is merely a case where we should follow the general principle according to which politics should be adapted to Right. As a result, there is no need for a complex post-revolutionary guide to responsibility in post-revolutionary times. My responsibility does not entail judging the legal order or taking the law into my own hands out of a supposed love of mankind. Unless the state in which I live is unjust to the point of being barbaric, in which case it is no better than the state of nature and I ought to resist it (Bernstein, 2008; Ripstein, 2009), I owe the minimal allegiance to it because it provides me with the conditions of possibility of a rightful order.

Therefore, and perhaps surprisingly, Kant agrees with Constant that individuals ought to obey the Directory. The reason is not that the Directory would be the best regime. But as an existing regime, it provides the legal basis for the co-existence of external freedoms. Perhaps paradoxically, it is only by placing Kant's text within its political context that we can understand his own textual gesture of setting political circumstances aside.

According to Constant's view, Kant's political juridicism can be endorsed only because he is in the position of the bystander and takes the long view of history. Kant's defence of the Revolution takes the distant position of the spectator from across the Rhine, and not the position of the agent in the midst of uncertain circumstances. In his famous remark on the French Revolution as a spectacle showing the morality of mankind in the Conflict of Faculties (Kant, 1996b: 302; 7:85), Kant takes the point of view of the detached spectator – not that of the revolutionaries and post-revolutionary men who had to make difficult decisions in uncertain times. After the fact, and from a distance, it is possible to take a panoramic view. But from the point of view of the agent entangled in a situation where several principles seem to apply, having to deal with other agents not complying with the rules of morality or law, and having to decide about uncertain consequences, the correct rule of action does not appear to be subordinating politics to Right. Kant's approach to republicanism is principled. Yet for Constant it does not offer the guide to political action that post-revolutionary French citizens desperately need, because it does not take into account the necessity to judge whether the conditions of Right obtain or not in a specific set of circumstances.

Kant and Constant provide the post-revolutionary individual with two theories about the extent of personal political responsibility. Kant's political juridicism and Constant's principled realism offer two distinct paths to the realisation of the Republic. Ironically, there remains a basic similarity between Kant and Constant's theory about the duty to obey and maintain principles in uncertain times or when faced with evil. They also agree that a government, even imperfect, is better than the chaos of revolutions. Even Constant's position towards the unstable government of the Directory is close to Kant's position towards despotic governments. Their primary quality is that, as existing governments, they already present a means of escaping a chaotic state of nature. Constant acknowledges the necessity of such a government after the disorder of the Revolution and the Terror. In fact, in his view, post-revolutionary states will never be properly founded due to the theory of movements and reactions, which he describes as characteristic of revolutionary upheavals. If a Revolution has to run its course beyond the point of equilibrium between ideas and institutions, the post-revolutionary moment will not permit the foundation of a state on an ideal social contract. This lack of perfect foundation is not however a lack of legitimate ground for Constant, as long as this imperfectly founded government still strives to respect fundamental Republican principles and honours individual rights.

Constant's original position in PR is not expediency. It is a principled realist theory of the political responsibility of citizens in revolutionary times. By action or by inaction, citizens are all responsible for the political course their nation is taking. His historical theory of revolution and reaction pushes him to find concrete and direct measures to put an end to chaos. Like many French Republicans after him his motto is terminer la Révolution: realising the ideals of the Revolution by bringing it to a close. Contrary to Kant, Constant argues that there is a collective and political responsibility to arrest the perpetual motion of revolution and reaction. It is not enough to fight for freedom during the Revolution, and then abandon all hope after the Revolution has degenerated into the Terror. One ought to fight to prevent the backlash of political reactions, without which any revolutionary gains are meaningless. Surely, Constant would concede to Kant that the consequences of our action are uncertain. Yet despite this uncertainty, and at the risk of being unsuccessful, individuals ought to take responsibility for the realisation of revolutionary principles, which may entail taking the law into their own hands for principled reasons.

Footnotes

Acknowledgments

I would like to thank the participants of the Political Theory Workshop at the University of Chicago, the Midwest Political Science Association and the Cambridge Seminar in Political Thought. I am also grateful to Loubna El Amine, Bryan Garsten, Rafeeq Hasan, Will Levine, Laura Montanaro, Sankar Muthu, Zakir Paul, Jennifer Pitts and the anonymous reviewers of this article for their helpful comments on my text.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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