Kant & Rousseau: Legal Freedom and the Social Contract

Legal Freedom: Kant & Rousseau's Perspective

Freedom, for philosophers like Kant and Rousseau, is a natural right inherent to each individual. The legal concept of freedom, however, did not imply civil disobedience. For Kant, much like Hobbes, believed that submission to state power was a necessary condition for maintaining social order. To prevent abuses by rulers, Kant emphasized his defense of freedom of expression.

Human beings possess both internal and external legal freedom. In the state of nature, individuals possessed external legal freedom, which no law should limit. However, internal legal freedom is found in obeying the laws we ourselves have made. Thus, in an ideal state, legislation is enacted as if it were the will of all citizens. Yet, only internal legal freedom involves co-legislation. The people, according to Kant, must not rebel when laws are perceived as unfair, as this would lead to a return to the State of Nature. Legal freedom is ultimately achieved through the creation of society.

Legal freedom should be understood through two key aspects:

• Freedom and Autonomy: The State must ensure the coexistence of individual liberties. Freedom necessitates mutual limitation. The law seeks to limit these liberties to make them compatible. Freedom as autonomy is conceived as a space where everyone can pursue happiness without disrupting others.
• Freedom as Self-Legislation: This is the faculty not to obey any law to which one has not previously given consent. The consent of all legitimizes law and ensures justice. A state founded on self-legislation is a guarantee of peace, as its laws emanate from the united will of the people.

The Social Contract: Philosophical Foundations

In contractarian theories, the term "social contract" refers to the covenant by which people decided to create a civil, social, legal, and peaceful state, emerging from the semi-wild state of nature that is supposed to have existed before this fact. For Kant, the social contract is not a historical event but a regulating idea of reason that should guide the legislature. It dictates that laws should be made as if they could have originated from the united will of a people, and subjects should be viewed as individuals who have voluntarily consented to be citizens.

The social contract serves as a crucial regulatory reference to legitimize or de-legitimize actual political practices. These theories emerged to rationally justify the establishment of civil society and political power, contrasting with earlier theories of the divine origin of power.

Two primary ways were proposed to exit the state of nature:

• According to Hobbes, through the establishment of an absolute power (the "Great Leviathan") that must stand above the citizens.
• According to Locke, through a social contract in which individuals unite, each ceding their power to execute natural law to the community.

This contract represented the first moral obligation to be drawn: to leave the state of nature and seek the peace, justice, and freedom (both moral and legal) that are only possible within civil society. If a person submits to another by force, no social contract has occurred, and therefore, power imposed by force derives no rights.