The State Duty to Support the Poor in Kant's Doctrine of Right

1. Innate Right and Property Rights in the Doctrine of Right

As conceived in the Doctrine of Right, freedom is equal to self-mastery in the sense that, as a being able to set purposes for myself and pursue them, I am free when my choices are not determined by others. This does not mean that I am free to ignore the presence of others; not at all. I am situated in a world where others exist, so their presence and their actions form part of the context in which I act. In the sense of that context, then, my choices may be limited by what others have chosen to do; they may stand in this particular spot so making it unavailable to me; they may eat that particular apple so I cannot. This notion of self-mastery is to be understood as independence from others in the sense that no individual is entitled to make choices for me, to set for me my purposes and say how I shall pursue them; as far as right is concerned, I am a master of myself in the ‘negative’ sense that no one else is my master.

This notion of independence or self-mastery is not equivalent to the notion of autonomy popular in current political philosophy, which concerns being able to be an author of one's own life, having a range of worthwhile life plans to pursue. (Ripstein 2009, 15) points out the difference:

The second point is vital. As (Ripstein 2009, 14, emphasis added) says,

For Kant the law and the state concern relations of right, and right concerns that behaviour that can legitimately be coerced. To have a right is to be justified in coercing another to respect one's freedom, one's self-mastery. The only purpose of the state is to provide the conditions in which rights can be made actual by being systematically, coercively, enforced.

In the state of nature, that is before individuals come together in a civil union by attorning to a neutral authority, the only indisputable right that we have is what Kant calls our ‘innate right’, our right of humanity, the right to act as a self-directing creature. As (Ripstein 2009, 40–42) and Weinrib (2002-03, 804) both explicate the point, this is essentially equivalent to your right to your body, because your body is you to the extent that your capacity to set and carry out your purposes is concerned, and you are your body in the sense of the way that others' actions may impinge upon you as a purpose-setting and pursuing being. Most simply, innate right is the right of our embodied selves to occupy the space they actually occupy, and thus innate right imposes a duty upon all others not to invade this space. Innate right prohibits not only our very bodies from interference, but as a collateral effect, protects our possession of those things that are actually within our grasp: innate right requires not only that you refrain from poking me in the eye, but also that you refrain from prising the apple from my grasp.

The point and justification of innate right is the protection of our mastery over ourselves, our capacity for freedom, in so far as that can be undermined by the actions of others. In the absence of innate right, my self-mastery would be undermined or eliminated, for I could never securely pursue any choice if anyone at any time were free to push me around or knock me about or relieve me of anything I held.

Innate right is innate in two co-ordinate senses. First, it is innate in that my being itself, in so far as I am free and can act on my choices, is embodied. As far as my freedom of action is concerned, I and my body are one; I am my body and it is me. Thus innate right is innate in the sense, first, that the duty it imposes is seen to be conceptually necessary as soon as the (embodied) nature of my capacity for freedom is appreciated. It is innate, secondly, in that it is non-contingent. It comes into being for me if and when I do, and lapses on my death. It is not something that I acquire or can lose. So long as I exist, it does.

So far so simple. But beyond this innate right, I may also acquire further rights in the state of nature. These rights, which Kant calls, naturally enough, ‘acquired rights’, are of three kinds: property rights, rights in or to others acquired through the formation of contracts and rights in or to others arising because of relations of status, for example those of husband and wife, parent and child, or master and servant. We need only concern ourselves here with the first.

A property right is a right in a tangible thing or in some piece of land which continues even though I am not in actual physical possession of it. Innate right protects my possession of this location I occupy while I am in it, and the shirt on my back while I wear it; the right to property protects my flat when I am in town, and my shirt while it hangs in the wardrobe. The compatibility of the right to property with the idea of morality as freedom, i.e. with the idea that right is concerned with the individual's self-mastery, is obvious: many perfectly sensible and valuable actions would be taken off the table if others could interfere with any tangible item so long as it was not in the actual possession of another. I could not safely leave the soup simmering on the stove to go and cut some herbs to throw into it if that was the normative regime. Kant provides this kind of ‘negative’ justification for property rights: any normative regime which banned in limine the right to use something as mine (and your equal right to use something as yours) would sterilise a perfectly sensible way in which persons could set and pursue plans, turning such things into res nullius (Kant 1996 [1797], 41/6: 246). Weinrib (2002-03, 806) goes further and also distinguishes property rights in this way:

I think this over-eggs the pudding. No firm distinction can be made between innate right and the right to property on the basis that the former expresses the equation of actual possession with actual choice while the latter expresses the equation of non-possessory right with the capacity for choice or the potentiality of choice. By holding on to the gold in my pocket under the auspices of innate right I do not thereby exercise any significant choice over it, that is, beyond my minimal choice to hold on to it. There is a great deal of freedom of choice left to me to decide what I want to do with it: make a ring, gild a picture frame, whatever. And the right to property protects my fully realised choice to make a patch of ground into a formal garden and to do nothing else with it, so that I can pop into the pub for a drink and a chat safe in the knowledge that wrecking my garden when I am away is prohibited; in this instance the right to property protects not my capacity for choice but rather a choice I have made. ⁴ Be all that as it may, I take it that the sense of property rights as the protection afforded a person's capacity for freedom in a world of external spaces and objects seems clear enough.

2. Property Rights and the ‘Assurance’ Argument

The assurance argument, such as it is, is pithily put by Kant (1996 [1797], 44–45/6: 255–6: 256, emphasis added) as follows:

Unfortunately, put this way, the claim that my obligations to others only exist because (note the italicised ‘therefore’) they assure me that they will respect their obligations to me seems to reflect no notions of right whatsoever. Outside conventional obligations—obviously I have no duty to play chess with you, following the rules, if you have no intention of doing so yourself; what would be the point?—it is never a reason not to comply with an obligation that others refuse to comply with it. Two wrongs do not make a right, as they say. And if one had no true obligation to observe some rule, such as the (supposed but in fact non-existent) ‘rule’ not to take another's property, then the assurance of others to ‘play the game’ would not ipso facto impose a duty upon me to do the same. There is, obviously, something else going on.

As elaborated by Weinrib (2002-03, 808–810), Ripstein (2009, ch. 6) and (Jeremy Waldron 1996, 1545–1564), that something else is something like this: in the absence of a neutral authority, to which all must attorn (Kant, despite the language in which he frames the assurance argument elsewhere (Kant 1974, 65; 1996 [1797], 92–93/6: 315, 95/6: 318) specifically denies the social contractarian idea that what is required is that everyone voluntarily makes particular assurances to everyone else), claims of right, one individual against another, fail to embody the equality of application of the laws necessary to a system of rights.

Ripstein (2009, ch. 6) sets out the thought nicely in terms of three defects in the state of nature, and their solution by means of the institution of a legal authority. In the state of nature any claim of right I have can only be taken by others as valid in consequence of a law that applies to all; but in the state of nature such a claim is unilateral in the sense that I have no authority to lay down the law for anyone else. Secondly, rights are just those norms that can be enforced, so any claim of right is a claim to be able to coerce another. But in the state of nature, by what title does any individual validly enforce the law? Finally, if all of that were not bad enough, the application of any sort of right or norm requires judgement. In this sense, rights are indeterminate, and so the unsystematic enforcement of norms by individuals will lead to inequality in the enforcement of the law; it would be a recipe for the antithesis of justice: like cases would not be decided alike.

The solution is the institution of an impartial legal authority, with the power to legislate, adjudicate and enforce laws laid down for all. In its guise as a legislator, the authority reflects the united will of the people, an ‘omni-lateral’ will as opposed to the unilateral will of one individual purporting to lay down the law for others. As an adjudicator, the authority resolves the problem of indeterminacy by speaking with a single voice. The resolution does not require the law to be perfectly certain. That is impossible; what the impartial adjudicator obviates is each individual applying the law according to his or her own judgement, which leads to chaos even if each individual acts with the best will in the world. As (Waldron 1996, 1547) puts it, ‘Even if men are angels, they are opinionated angels, and they hold (or there is a strong probability that they hold) conflicting views about justice for which they are prepared to fight’. Finally, as an executive, the legal authority's enforcement assures all subjects of the law that their rights are equally protected, that is, subject to a regime of enforcement where all are treated equally, i.e. from which no individual can excuse him/herself.

Waldron explains it slightly differently, but to similar effect. Again, the essential thought is that no individual is entitled to coerce another to vindicate his or her rights. ⁵ Rather, ‘the paradoxical claim [is] that each person's doing what seems right to him is tantamount to that person's renouncing the concept of right altogether’ (Waldron 1996, 1536). This follows from the idea that in the absence of a legal authority to which people attorn, the coercive enforcement by individuals of what they honestly and rationally believe are their rights cannot deliver an assurance either to themselves or to anyone else that their rights will actually be observed. Only an omni-lateral will can use force in the name of all; a single individual's use of coercion to give effect to rights can only be perceived by the recipient of the force as the expression of a unilateral will.

(Waldron 1996, 1558) then considers the obvious objection to this way of seeing things:

A little further on (Waldron 1996, 1560) provides the riposte:

In short, we can understand the insistence upon attorning to an impartial authority, an authority that applies to all, as a requirement that coercive enforcement of rights can only be just if systematic. We must all be playing the same game, not in the sense that the rights enforced are merely conventional, but in the sense that the coercive enforcement of rights cannot amount to the coercive enforcement of rights (i.e. of that of ours which can rightfully be coerced) where the possibility, indeed the likelihood, is that a different version of the rights is enforced on each occasion of enforcement. To the extent that we conceive of justice as an expression of the equality of individuals, this state of affairs would generate the very opposite of equality under the law. It is a matter of equality before the law that our rights are the same. ‘Decide like cases alike’ is not, then, simply a criterion of legal rationality, but one of political equality.

Let us, then, take the assurance argument as proven, and regard the Lockean objection as thwarted. Before moving on to consider the social contract argument, there are a few points to be made about the assurance argument.

First, while the unilaterality of the exercise of property rights is an especially clear and vivid case of one individual's ‘laying down the law’ for others, the problem is in essence identical for the exercise of powers to enter into a contract and to enter a status relationship like marriage. The assurance argument addresses the problem of acquired rights together, for the problem for each sort is the same: it is that acquired rights come into existence via the exercise of powers, powers that purport to alter the rights and duties people have. The problem is the same irrespective of the scope or character of the particular power. Although the consent of the other in the case of contract or marriage might seem at first glance to make the case different, this is not so. For as soon as any party to a contract or to a marriage wishes to rely upon his or her agreement or the act of union, he or she purports to apply a law that enforces the result of his or her exercise of the power in question. Either the law granting the power is the same for both of us or it is not; no individual party can claim the rightful power coercively to enforce his or her contractual rights unless the law conferring the power is one that applies equally to us both. I cannot enforce a ‘unilateral law’ of contract any more than I could a ‘unilateral law’ of property purporting to empower me to appropriate a patch of ground, and your consent in either case would simply be irrelevant. That we might agree that I successfully appropriated Blackacre or that we entered into an agreement would merely constitute a bilateral private understanding. Such an understanding could not generate a right to coerce another unless it were framed in terms of the exercise of a power conferred by an antecedent law, a law given ‘omni-lateral’ authorisation by the legislative branch of a lawful authority. As (Ripstein 2009, 179) says, ‘If rights to external objects of choice are not enforceable, then, as a specific case of this, contractual rights are not enforceable’. (Explaining that the scope of the assurance argument is even broader than this, Ripstein convincingly argues that all the problems of unilaterality, indeterminacy and inequality arise just as much in the case of the coercive enforcement of innate right as they do in the case of other private rights, so much so that (Ripstein 2009, 179) states that innate right, while not ‘provisional’ in the state of nature in the way that property rights are, is nevertheless ‘imperfect’ until people enter a civil condition.) ⁶

It is, finally, important to notice what the assurance argument does not entail. The fact that enforceable property rights do not exist in the state of nature, and are dependent for their very existence on entry into the civil condition, does not make them into a part of public law, whereby the state ipso facto acquires rights in the property of its subjects, to redistribute them or in any other way take advantage of them (see Waldron 1996, 1566; Ripstein 2009, 154–155). The validity of the assurance argument does not have the effect of transforming property rights into a kind of public right, or a right to the state's largesse in granting rights to resources to individuals, rights that might be subject to modification in view of the state's purposes, or subject to shaping to maximise utilitarian or economic efficiency goals. Although only assured by a neutral public authority, property rights remain firmly in the realm of private right. So, just in case this occurred to the reader, the assurance argument does not provide a basis itself for some public right or duty to dispose of its subjects' property.

3. The ‘Social Contract’ Argument

The ‘social contract’ argument has several steps. (1) The first premise is that no people could legislate for itself to create a law that gives rise to the possibility that individuals might be dependent upon others for their very existence. Thus (2), no people could institute a system of property rights under which a person could literally have no place to stand, for in that case such a person would be dependent on others allowing them to enter their property. (3) The institution of property rights gives rise to just such a possibility, since all land could be appropriated. (4) Therefore property rights could only be legislated upon the condition that the state provides for the poor, i.e. those who have no, or no sufficient, rights in land, actually to survive.

I shall dispute (3) and (4). I shall argue that, properly understood, property rights do not entail the (juridically valid) possibility that all land could be privately appropriated. Secondly, I will argue that even if (1) to (3) were correct, (4) is not the right resolution under Kant's characterisation of the state in the Doctrine of Right. If property rights really do have the possible consequences set out in (2), then property rights are not rightful, and no state could legitimately enforce them.

Before getting to that, however, it is worth raising a doubt about whether Kant himself recognises the possibility of unjust relations of dependence of this kind which Weinrib and Ripstein think motivate the state duty to support the poor. Both in Theory and Practice and more vividly in the Doctrine of Right itself Kant classifies subjects of the law who would otherwise be capable of citizenship (i.e. men rather than women and children), into citizens and non-citizens purely on the basis of whether a person has the property and skills to make him independent of others or not. Here is a sample of the thinking (Kant 1996 [1797], 91–92/6: 314–315, all emphases added except the last):

It is difficult to square any, much less all, of this with the claim that the institution of property is so debilitating, independence-wise, that the state must step in to ensure that each subject of the law is economically independent of others. ⁷ Kant fairly embraces the idea that some will be dependent on others, so much so that their citizenship is not even possible. Drawing attention to this does not, of course, refute Wienrib's and Ripstein's Kantian argument, but it should give pause to the thought that it reflects the thinking of the man himself.

Turning to the arguments, (3) claims that the institution of private property entails the possibility that all land could be appropriated, so that a person faces the possibility of literally having no place to exist as of right, and so therefore needs to rely on the private generosity of others. But why should the institution of a system of property rights entail this possibility? As (Ripstein 2009, 243–252) points out, no one could possibly agree to a system of ownership of land unless there were also a system of public highways. By the same token then, it seems quite right that no person could agree to a system of land ownership without leaving public spaces available to those who do not own any land. (Ripstein 2009, 280) objects to this sort of solution: to have the right to use a public highway is not the same thing as having a place to stand, since the public highway is a publicly provided facility for moving from one private location to another, and nobody is allowed to live on public highways, for that would be to appropriate a part of the public highway for one's private purposes. But this way of looking at matters only follows from an unwarranted restriction on the concept of public spaces.

The thing to notice about public spaces, including highways, is that they reveal a distinction between ‘unappropriated’ and ‘unused’. Public spaces, such as public highways, are not owned by anyone, and that includes the state. (The state may regulate the public highway and can appropriate public highways in the same way as it can expropriate private property, but that is a function of the state's powers, not of any prior ownership rights.) In general, it is wrong to think that a private individual can appropriate any ‘unappropriated’ thing, whether an object or a piece of ground. I am not entitled to appropriate a thing if it is presently occupied or used by another or others, whether or not they have ‘appropriated it’ in the sense of occupying or using it with the purpose of taking exclusive possession of it. It is the sheerest dogma to deny the recognition of public rights of this kind, rights of way being the most obvious example. ⁸ The obvious solution, then, to the problem created by instituting property rights that would allow total private appropriation so that the landless might literally have no place to stand is to extend the notion of public spaces so that it is not an offence to use those spaces to live. In the same way that roads could be regulated to ensure the smooth flow of traffic, public spaces could be regulated so as to allow the ‘homeless’ to live with dignity within them (see Waldron 2009).

Such a solution, of course, is not anything like the ideal way to address the problem of the homeless, but that is not the issue. The issue is purely one of ensuring that I am not dependent upon private largesse in order to stand anywhere at all. Regulated public spaces solve the problem. Indeed, they solve it better on Kantian theoretical grounds than raising taxes to provide funds to the poor, for that clearly does not solve the theoretical problem, since all of the landowners on this ‘solution’ could still refuse to contract with the poor (or individual poor people) to provide them with accommodation. The poor would now be dependent in a different way upon the choice of others: their choice to contract with the poor. We know, after all, enough about the way in which certain communities actively avoid being the location of ‘social housing’ or locations for homeless shelters, etc. to see that this concern is not merely theoretical, though the theoretical point is robust enough. ⁹ Below I shall accept the point that the state is entitled to provide for the less well off in myriad ways, but here the point is simply that our first take on the problem is to see whether it is essential to the concept of property rights that all land could be privately appropriated, which I deny.

This can be tested by considering Ripstein's discussions of roads. Ripstein argues, quite rightly, that a system of private property that allowed utterly unfettered appropriation could result in individuals being literally imprisoned in their landlocked properties. They would be dependent on other owners to allow them to leave and enter their land. Therefore, it is essential that public rights of way be in place. But Ripstein argues not that the necessity and validity of public spaces are conceptual aspects of a valid regime of property rights conceived independently of the state, but that they are rather the creation of the state, as part of ‘a system of public provision’ (Ripstein 2009, 250), not part of the private law of property per se (Ripstein 2009, 249):

I agree with the last paragraph, except for the word ‘public’, as in ‘public rules’. Any normative regime, whether it concerns private rights or public rights, arises in virtue of there being norms that apply. That is all it can mean for there to be a standard of behaviour governing some human activity. So, yes, the idea of a road qua public right of way turns on there being rules that make it public, i.e. not privately appropriable, as well as on norms about the proper behaviour of road users, norms that originally were, doubtless, very informal and imprecise. (In the days of horse and foot one imagines rules of this kind were very few as well.)

Ripstein's error, as I see it, is to presuppose that rights of individuals to public spaces cannot be accommodated alongside the right to appropriate land, i.e. alongside the private law of property as such. But surely it is not some sort of conceptual truth that where a road is ‘simply unowned’, ‘anybody who wants to could come along and claim it as his or her own property’. Says who? Ripstein argues forcefully that a regime of property rights would be self-defeating, would imprison owners, if rights of way could be appropriated. So why does the same not go for conceiving natural limits to the rightful power to appropriate so that other public spaces, like open pastures and forests, use of which is continually made, are literally off-limits for appropriation? One might wish to ask the appropriator who disagreed, ‘How did you get to the land you have appropriated in the first place?’ The public space preceded the private, necessarily so. So, pace Ripstein, both historically and conceptually the soundest view is that roads and public spaces are a ‘residue’, that left after private appropriation. But it is not a residue in the sense of ‘yet to be appropriated’ space, but rather space that provides the necessary spine supporting private appropriations.

On the historical point, perhaps the greatest injustice in the history of the institution of property rights was that institution's abuse by the powerful to appropriate lands which, while not ‘owned’ in the strict sense, were certainly occupied and used. Anyone with any sympathy at all for the concept of aboriginal or native title (see Chambers 2008, ch. 19) understands this point.

This is not quite the end of our disagreement because Ripstein argues that no individual can ‘live’ in the public space, for this would be to appropriate it privately for his or her own purposes. But this is to restrict unduly the notion of a public space. It is true that a person is not entitled to set up home in the middle of the road, but not all public spaces are roads, and one can live as a nomad in other public spaces, and indeed there can be formal and informal rules that govern the rights of nomads. ¹⁰ I hasten to repeat that this is a highly unsatisfactory ‘solution’ to the modern problem of homelessness but, again, that is not the issue.

Rights of way, and rights to other public spaces that flow from the richer concept of property just set out are, of course, just as ‘provisional’ in the state of nature as are the rights to appropriated property. So, upon entering a civil condition, the legislature's laying down rules of the road or the rights of nomads to public spaces is no more problematic from the standpoint of private right than is its producing a body of rules specifying more or less precisely how property rights can be acquired, transferred or lost.

I have myself in the past argued, in the same vein as Kant, that collective or communal ownership presupposes property rights, since the collective or commune just as much as the individual owner appropriates patches of the earth and excludes those not belonging to the collective. But this does not in any way undermine the basic intuition, which is that a concept of public space, public commons and, in particular, public rights of way can form part of the juridical context in which appropriation is rightful.

My second dispute is with the conclusion expressed in (4). First of all, it is worth recalling that the social contract argument is not Kant's. Kant frames the duty as duty to ‘preserve’ the people, which Ripstein construes as a duty to maintain the rightful condition. This is an entirely separate justification of the duty, which I shall examine below.

As regards the social contract argument, the question is whether the terms of the social contract test are such that an otherwise un-legislatable rule can be ‘fixed up’ by imposing a duty on the state such as the duty to support the poor, and I think the answer must clearly be ‘no’. Recall again what the social contract test amounts to. Given that all laws that the legislature enacts must be conceived as laws generating private rights, that is, there are no state interests that can be given effect to by legislation, the test is the negative test of prohibiting any law that no people could possibly lay down for itself. Now on this conception of legislation, the one thing we know for a certainty is that any law that violated freedom, that is the freedom to acquire and dispose of one's own, is absolutely prohibited. Thus any law imposing a duty to meet the needs or wants of other individuals, say a duty of charity, would be ruled out, for such a law would violate the very understanding of the connection between freedom and right given voice to in the Doctrine of Right. But this is the very sort of duty that the state duty to support the poor is. Notice, the problem is not that such a duty is ruled out as an impossible duty of the state. Kant, after all, argues for it. What is ruled out is its being a legal rule that the people create by legislation. State duties for Kant are not duties arising from the will of the people (though of course the contours and mechanisms by which these duties are implemented can, of course, be subjects of legislation); rather, they are particular duties that give effect to the state's overarching duty to preserve the civil condition. The upshot of these considerations is that if property rights could not possibly be laid down as law by a people for themselves because the institution of property could lead to some being unfree, then that is the end of the matter. Legislation such as that could not be fixed up by throwing an ameliorating duty upon the state. So, to use Kant's example, a people could not legislate for a hereditary master caste, and then fix up the law by framing a duty upon the state to ameliorate the conditions or results of dependence to which such a law would give rise. Such a law would be ruled out in limine, and the same would go for a regime of property rights.

This is not to say that ‘ameliorating’ rules that make it possible for the people to institute a regime of property could not be legislated, but they could not really be regarded as ameliorating rules, but rather as rules that gave effect to the true understanding of property, assuming property really is an institution required by a regime of freedom. So, for example, I have just argued that a just property regime prohibits appropriation of public rights of way, a prohibition that I have argued is internal to the concept of property itself. A people can address legislation to itself that shapes its private rights upon the best understanding of the way they contribute to freedom. But a people cannot legislate the nature of the state, which is what giving it duties that do not flow from its role as preserver of the rightful condition would amount to.

We are therefore left with the alternative ground for supposing the state has a duty to support the poor, that it is one of the particular duties the state has to meet its overarching duty to preserve the civil condition. As Weinrib (2002-03, 818) phrases it, ‘Support of the poor … may be for Kant a constitutional essential’. I would amend that to replace ‘may’ with ‘must’.

4. The Duty to Support the Poor as a Duty Necessary for the Maintenance of a Rightful Condition

This second argument for the state duty to support the poor draws on Kant's own formulation of it, or at least draws nearer to it, which is that support of the poor is necessary for maintaining a rightful condition.

In assessing the argument, it is important to bear in mind that the only purpose of the state is to ensure the continuation of the rightful condition, which means a condition in which private rights are enforced by law. This is the sense in which the notion of a system of rights in the Doctrine of Right is austere. As (Ripstein 2009, 223) helpfully points out, the only duties that the state has qua state, and the only powers it is entitled to exercise, are those that relate to the securing of this rightful condition, and therefore, as a matter of exegesis, all the state duties that Kant enumerates must be seen as duties that the state necessarily has to do so. The state has no other purposes. My argument here is that, on a little reflection, the state duty to support the poor cannot be a duty of this kind, and Kant just fell into error by including it in the list.

The reason is straightforward. Supporting the poor is simply not something that needs to be done to preserve a rightful condition. To put it starkly, the existence of the poor is not incompatible with the rule of law. And the rule of law, rather than private violence to protect one's interests, just is what the civil condition amounts to.

Entry into the civil condition, as we have seen, is a matter of attorning to an impartial authority which lays down, adjudicates and enforces our rights each against the other. Attorning in this way is, furthermore, required in the sense that all have a duty to enter into a rightful condition. But this universal attorning does not generate a state in the modern sense of one that may have as a purpose the preservation or maintenance of a people, that is a people in the rich sense of a group with various kinds of commitments to each other that forge a common identity or shared sense of destiny. Attorning to authority does not, pace Kant, make a ‘people’. The ‘people’ under Kant's state cannot be more than those subject to a particular legal jurisdiction. Kant's state, that is, is no more or less than a state conceived of as ‘the law’, a state that cannot be conceived of as doing more than laying down, applying and coercively enforcing universal laws that protect the freedom of its independent subjects, and carrying out other tasks such as the defence of the realm that are strictly necessary for preserving this condition.

To put it another way, this state qua‘legal authority’ is not the right sort of ‘protector’ of the people to acquire a duty to support the poor. This is why I suspect Weinrib and Ripstein bring the ‘social contract’ argument forward, despite Kant's not having made it himself. On my reckoning bringing the social contract point in effects an illegitimate and surreptitious move from regarding the state as a bare legal authority to regarding it as a modern national state with the richer set of concerns necessary for a duty to care for its people.

Without pressing the point too hard, as we have seen above, Kant clearly seems to think that the rule of law, a fully rightful civil condition, is perfectly compatible with large numbers of citizens who are ‘poor’, i.e. dependent on the direction or protection of others. As a way of capturing the Kantian state, Anatole France got it right. ¹¹

Indeed, (Ripstein's 2009, 292–295) claim that the state has a duty to fund universal education (under the rubric of ‘equality of opportunity’ (Ripstein 2009, 287–295)) has a greater justification than a duty to support the poor within the structure of the Doctrine of Right, since there is a need for enough educated people to fulfil the roles of officials of the state, and more generally, because to play the role of a citizen (or an ‘active’ citizen, at least) requires (so Ripstein says) literacy and civic education. It may seem paradoxical that the state might have no duty to support the poor but does have a duty to provide universal education, but the paradox disappears once one realises that this is not a matter of the independence of citizens conceived one by one but of sustaining a rightful condition, which means no less than, but also no more than, sustaining the condition in which the law continues to apply effectively.

In the last section I shall consider what sort of considerations should give rise to the state having an interest in the plight of the poor. What Kant lacks, I suggest, is something like Hegel's notion of a rabble.

5. The Problem of Poverty

It is not uncommon for theorists interested in the justification of property rights to think that any justification for them is undermined, or at least made insecure, by the existence of the poor. The motivating idea is that prior to the introduction of property rights, everything is available to everyone, whereas all of that is foreclosed by private appropriation. The lesson drawn is that the legitimacy of the institution of property rights is undermined to the extent that there are people who are poor, i.e. property-less to some significant extent. Weinrib convincingly suggests that Kant thinks along the same lines. ¹² Here I briefly want to raise some considerations that suggest that this sort of tight connection between the legitimacy of property rights and the existence of poverty is mistaken.

Let us first consider a true specific connection between property rights and poverty. The very ability to help the poor requires not just innate right, but also the right to property, for if I do not own something, I cannot give it to you. Under innate right, as soon as something leaves my grasp anyone else could take it. For then, though it is no longer mine, neither is it yours. If we want to be silly about this, we can bolster the power of innate right by degrading the notion of transfer or gift to something like ‘directional abandonment’: we could try factually to engineer things so that I can directionally ‘abandon’ my property so that my intended donee is the only one placed, or the one best placed, to receive it, for example by placing an orange in your palm so you can immediately grasp it (for discussion, see Penner 1997,79–87). But this is just silly. ¹³ The meaning of my ‘giving’ you an orange, in terms of the idea of right, is that I have exercised my rightful powers to confer a benefit that you are entitled to as of right just because of that exercise of my powers. If we do not appreciate this as an essential element of the transaction, then I have not helped you as a matter of right. I have just abandoned something protected by my innate right of bodily security, an abandonment that turns out factually to have benefited you, but the juridical meaning of which cannot capture the intent with which I do it, or rather, must deny it.

Leaving this silliness aside, on any sensible understanding of the idea that one person provides material resources for another, whether a child, someone infirm or simply a person one wants to benefit, the practised idea of property is essential. So a first argument against the idea that poverty poses a problem for the justice of the institution of property is that this is entirely misconceived. If you want to address poverty, property is not the problem, it is part of the solution, essentially so. In the absence of property I am incapable of using what is within my possession or control to benefit you, at least as a matter of right, i.e. with juridical significance. So we must, instead of following the long tradition of finding some sort of inherent opposition between the existence of property and the ‘natural’ rights of the poor, a tradition that Kant—clever Kant, of all people—unfortunately follows ¹⁴ , begin with the understanding that the question of what duties one owes the poor is a question that assumes the legitimacy of property rights. In the absence of the practice of property, no one could do anything about looking after the poor. The poor, if they are to be helped at all, require the existence of the practice, for, to put it as bluntly as I can, when the poor do get theirs, it must then really be theirs.

We can now turn to consider three different ways of thinking about the plight of the poor.

If poverty simply means that one has a tight budget, has sometimes to make difficult (though not tragic) ¹⁵ economic choices, and that one does not have the holidays, food or houses that the better off can afford, then this is a condition in which many live for some, most or all of their lives. The existence of people ‘going short’ in this way for considerable periods of time, i.e. the existence of long-term relative poverty, should be a concern to everyone, that is, a concern to ensure that the terms of economic engagement are such that poverty of this kind is not systematically cultivated by the legal and social terms of economic engagement, or more particularly that individuals are not thwarted from departing this sort of poverty by those terms of engagement. Its existence does not, however, undermine the justice of property rights generally. After all, these poorer people, their families and their communities, rely on property rights just as much as anyone else does to secure the benefits of their actions and afford them the opportunity to make choices and pursue projects.

On the other hand, we may think about poverty not as being poor in this way (in a way I imagine many of us, or our families, have had to ‘go short’ for some stretches of our lives) but as a kind of destitution. For the sake of clarity, I think this can be subdivided into three cases, all of which relate in some ways to what might motivate Kant's notion of dependence. The first case concerns people who are dependent because they are incapable of providing or fully providing for themselves: children, the disabled, the aged infirm and so on. I take it that no one thinks that the existence of this class of the potentially destitute, and therefore dependent, undermines the justice of property rights in any way. Kant, as we have seen, thinks nothing of the sort in the case of women and children. The problem for these people is not that their ambitions to acquire property are thwarted by the pre-existing property rights of others. Indeed, giving these people all the property in the world would not help because their lack of property rights is simply not the problem. A rich but severely disabled person unable to feed him/herself is dependent in a way that a person without material resources is not. Now you may say that the rich but immature or disabled or infirm person is not a worry, for they can always pay for the assistance necessary to look after them, whereas such a one without any property cannot and is a greater worry, but I think this misses the point. Take the case of a rich miser who is loathed by his community who one day falls down the stairs. Are we really saying that there is no problem here if everyone, thinking that fate has taken a hand, resentfully declines to take his money and assist him? Are we happy to say that he should languish because, let us remember, freedom of contract is also freedom not to contract et tant pis pour lui? Assuming we all answer ‘no’, the intuition must be that our obligations to the incapable involve a duty of humanity whose structure and motivation is unrelated to the justice of the institution of property rights.

A very different case is that of the person who these days might be typified by the urban homeless person, or the person leading a semi-criminal existence on some ‘sink estate’, the sort of person who might be called ‘socially excluded’, or to be more neutral about it (since exclusion suggests there was some agent who did the excluding), ‘socially disengaged’. Does the plight of such a one undermine the justice of the institution of property rights? It is difficult to see how. ¹⁶ This neither represents a case of dependence of the right kind, nor does it seem to challenge the social practice of property in any other way. To the extent that there is a dependence in this case, it is a dependence arising within the ‘alternative’ community in which these people live their lives. The dependence may be very real, for it is easy to see the exploitative relationships that might flourish in such a community (gang leader/foot soldier, pimp/prostitute, loan shark/debtor and so on). Now, the plight of people in such circumstances can be addressed to a certain extent by the provision of money or other resources. Such provision may indeed enhance self-mastery by freeing a person from relationships of exploitative self-dependence. Humans being the social creatures they are, there is never a vacuum in which there are no relations of dependence between them, and the question is always whether those relationships of dependence are good or bad. To the extent that ‘a duty to support the poor’ is in place, it is a step up in these circumstances, allowing people to escape from the exploitative alternative reality to the dominant non- or at least less exploitative one. Furthermore, no one should deny that there is a link between absence of resources and a person's undesired fall, if that is the right way to put it, into the ‘alternative’ regime. A person who suffers an economic crisis, say one faced with a sudden and unaffordable illness in a society with no universal healthcare, is not at all unlikely to be pushed into dependence of various kinds, from public welfare to homelessness to worse. (Here, I think, we might place at least provisionally the position of the refugee, and I think the idea of being an economic refugee in one's own country is suggestive.) Provision of resources may be just the thing to prevent that from occurring.

In considering this case, however, there is a further and I would suggest vital consideration. The essence of the problem of the ‘alternative’ regime itself, what Hegel dubbed the problem of the ‘rabble of paupers’ (for discussion see Penner 2009, 198, 207–212), has nothing to do with poverty or public provision per se. It is not a problem of the distribution of wealth or anything else. The problem is that people in this situation are managing in one way or another to get by while disengaged from the dominant regime of economic and social life, which for the sake of the argument, we are presuming to be reasonably just. To the extent that these people are interested in and willing to join the dominant practice and are genuinely excluded by those within it, or restrained from entering it by those without (e.g. by the exploitative pressures of a ‘gang’ culture), then there is a problem to be addressed but one that would certainly not undermine the institution of property. Our concern, rather, should be that such people are able to engage with ‘private right’. In Kantian terms, everyone who cannot avoid coming into contact with others is obliged to enter the civil condition, with its full vindication of private rights. ¹⁷ Here is where I think one cannot generate Kant's duty to support the poor on the minimal premises found in the Doctrine of Right, and why I say that Kant needs something equivalent to Hegel's concept of the ‘rabble of paupers’. For this kind of alternative regime or culture does not respond systematically to any notion of ‘the poor’ to which the state duty Kant outlines is a response. A clever proponent of Kant's view might argue that for such people the existence in an ‘alternative’ regime just is the situation of one for whom the rule of law would not genuinely apply, and I would agree. If this does not demand some duty upon the state, nothing does, for this is the very idea of an internal state of nature, a canker corroding the spirit of the universal application of the law of freedom from within. The sticking point between us is that Kant, at least in so far as the Doctrine of Right goes, has no well worked out notion of social inclusion or exclusion (and any honest soul must admit his prevarication about full ‘active’ and lesser ‘passive’ citizens does him no good in this regard) that allows him to discern a duty of the state that does the trick.

Finally, consider the case of an individual who so lacks economic wherewithal, whether property in the form of exchangeable wealth, or such things as a talent at football or hedge fund management, that the result is, try as they might to engage as successfully as possible in the economy on the terms of engagement it offers, they are forced into expending what little they have in making tragic choices of various kinds: home or food, healthcare or education, birthday present for the child or milk for his or her breakfast, and so on. It is this sort of person who, if charity is relied upon, appears to be dependent in a pernicious sort of way, for if I am dependent upon your goodwill to provide a present to my child on their birthday or have my tumour attended to then it is fair to say that in a significant way I am not a master of my own choices. But is such a person best dealt with by instituting a state duty to provide subsistence?

I accept the point that such a one, provided by the state with the necessary resources, would not be subject to the choices of individual others so that they would lose their self-mastery in that way. Nevertheless, my answer, for the nonce, is I do not know. I find it hard to believe that such a person, while conceivable, does not really amount either to someone who is in some respect disabled, someone whose value as a worker to others is so low that even in a well-regulated economy he or she is likely to earn far too little to live a reasonable life, or to someone who is socially disengaged. In other words, it does not seem to me to be properly possible for there to be any significant number of significantly (relatively) poor people in a well-regulated economy in a reasonably just society. To the extent that there is, a state duty to support the poor is a distraction, for the working assumption must be that the economy is not well regulated and the society not reasonably just.