Kant Constitutionalism and Democracy: Shuvasmita Nanda & Atishree Gupta.

Author: Shuvasmita Nanda

Co-Author: Atishree Gupta

GITAM School of law GITAM (deemed to be)university Rushikonda Visakhapatnam A.P.

ISSN: 2582-3655 


Immanuel Kant is a German philosopher from the Age of Enlightenment. His political and legal theories have the most remarkable contribution to modern constitutionalism. This paper attempts to explain the necessity of a constitution in democracy, keeping in purview Kant’s writing. It mentions the constitution as a social agreement and analyzing its association with sovereignty. Subsequently, it explains the principle of the “Republican Constitution,” which includes fundamental constitutional right’s Liberty, Equality, and Independence. It will examine and clarify his fear of the implication of democracy, differentiating it from republicanism, specifying his views on the role of legislation and its importance in modern constitutionalism. It will put forward his thoughts on constraint positivism and democratic peace. He defines law as “the aggregate of the conditions under which the arbitrary will of one individual will be combined with that of another under a general inclusive law of freedom”[1]. He contemplates law as a coercive force to gain moral autonomy but did not decipher constitutional principles for its validation. He believed constitutionalism depends more on practical reasoning and not on interpretations. Thus, the last segment will state his thoughts on the relationship between morality and constitutional government. 


Enlightenment, Constitutionalism, Sovereignty, Republicanism, Arbitrary


Immanuel Kant(1724-1804), one of the most influential Western philosophers, explaining his relationship with constitutionalism while considering the vital democracy is fascinating yet arduous. He not being a professional of constitutionalism as its existence was doubtful in his time. He explained much about it, and we hope this manifest will provide a purview of his ideas. Kant’s Political and legal philosophy came to light a lot later, but, today they are given much importance mentioned and explained by Stammler, Kelsen, and John Rawls. Kant’s recent discovery of substantive constitutional review was undoubtedly supported and received widespread acceptance. Substantive constitutional review means examining the legal validity of legal substance, conduct based on constitutional justifiability, while the standard of it is substantiated by fundamental constitutional rights and other constitutional principles defining the substance of the law. 

Substantive constitutional review is something on which Kant has given many lectures in universities. The present-day substantive constitutional review has many similarities with rational law, which in Kant’s age and a long time after it was discussed as natural law. The modern-day constitution incorporates legal principles and applies positive law making it part of the legal system. This result specifies that reasoning and reviewing constitutional issues related should be adjudicated with similar contentions as done by the followers of natural law school. While natural law schools, including Kant, reasoned issues theoretically, even the philosophical ones, these issues in the present day are settled with legal reasoning. 

Constitutional review relationship with practical reasoning is not accidental. The basic perplexion lies in Kant’s provisional relaxity towards his undiscovered legal philosophy and not its re-discovery and development or presence in modern constitutionalism. Modern constitutionalism originates in Kant’s enlightenment era making him one of the greatest philosophers of his time. This article will try to examine Kant’s thoughts on contemporary constitutional theory. 


The constitution is the will of the people and the manifestation of a social contract that governs the relationship between people and government. The Constitution of a country is claimed to be the supreme law to which all other laws of the land must conform. It is the creation of a constituent act and is not created by the ordinary process of law[2]. The social agreement is a written compilation and not values that bind humanity together. It is an agreement of the people to form a society to live, on which their moral and political obligations are dependent.

In Kant’s era, the concept of the constitution was an idea of reason in an unscripted form depending more on experience, not being subjected to positive law. At the end of the 18th century, the constitution came under the dominance of monarchial legislation, which was Kant’s idea of positive law. While the social agreement for Kant is a coalition of individuals having a common objective. He states that:-

“In all social contracts, we find a union of many individuals for some common end they all share. Nevertheless, a union as an end in itself which they all ought to share and which is thus an absolute or primary duty in all external relationships whatsoever among human beings(who cannot avoid mutually influencing one another), is only found in a society in so far as it constitutes a civil state, i.e., a commonwealth” [3].

In Kant’s view, all individuals have to devise a social contract among them to be part of a society forming a civil state. While the mootable issue is whether the move from the state of nature to civil society is voluntary or mandatory, to which Kant maintains that the ideas behind the social agreement and state of nature are entirely fictitious. In Kant’s purview, the transition has political relevance; it tells an individual about his moral situation whereas, the civil society in which he happens to find himself states him that he is to think about his present allegiance not in light of a voluntary commitment but in light of the reasons that make that commitment necessary[4].

Kant’s and Thomas Hobbe’s reasoning for entering a social contract is structurally similar yet different. Kant believed that one person must force another to enter into civil society, while Hobbes followed the idea of the individualized reason for survival. The fundamental difference lies in the idea of political obligation, which in the Hobbesian manner is individualized while in terms of Kant, it is not. The reason that Kant mentions, behind the benefits of an individual entering into civil society, prioritizes mainly on rational thinking, explaining that membership secures interdependence and reciprocal certainty between him and others in concern. The reason is still confusing and is unable to provide a clear Kantian view that an individual while conflicting with another individual, would force the other to join the civil society. Here, Kant affirmed the contest is never on how an individual enlists himself in civil society rather on the fact that what our conventional commitment to it is.

In Kant’s views, the idea of state and constitution is similar as it is the constitution that ascertains the form of government and the correlation of state powers. As he formulates

“The act, or rather its mere idea, by which a people constitute itself as a state consists in the original contract, according to which the people resign its external freedom so that it should find its freedom independence on the law, i.e., in the condition of the law”.

Social agreement as a plan is not Kant’s invention, but he derived it in a radical manner, explaining it as a pure standardized implementation of the social agreement in a restrictive design. According to Kant’s contemplation among all forms of contracts establishing civil society, the contract emphasizing civil constitution is phenomenal. From this, it could be considered that Kant explicitly believed in the constitution as a social contract.

Sovereignty defined under black laws states that

“The possession of sovereign power; supreme political authority; paramount control of the constitution and frame of government and Its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent”[5].

The idea of the constitution as a social agreement provides a view and connection between the constitution and sovereignty (being a part of the constitution). According to Kant, the constitution is not only the establishment of social life under Man-made laws (Rechtsgesetzen) but a unification of people under the rules of law forming an agreement. Sovereignty being the criteria of the just constitution but its evidence in people’s reasonable and generalized activity is not much realized. For Kant, the constitution as a social agreement and sovereignty are exemplary and very much identical to the republican constitution.

The concept of the constitution as a social agreement facilitates an understandable theory, which is legally decipherable as well as apposite in lawfully constitutional analysis, including the understanding of sovereignty under constitutional law. Sovereignty in contemporary constitutions has many advantages. On the one hand, the social agreement subjects are not the general people; on the other, both the idea of a constitution and social agreement is not empirical concepts. This results in the formation of various consequences based on the object and analysis of the constitution. A major view to this basis is the modern practice of neo-constitutionalist constitution which is an understanding of the constitution complying with its object construed as a social agreement. This being only conclusive foundational truth of the constitutional interpretation consisting facts if the result of the analysis is admissible as the component of the social agreement constitution

The meta-normative is a meta-standardized concept of Sovereignty and constitution. This explains that sovereignty cannot correspond to any empirical-social fact: the constitutional people as a sovereign exist only in the constitution, or rather in its idea[6]. Thus, forming and symbolizing sovereignty and its relation to the constitution a social agreement.


Kant believed that human’s ultimate aim is to procure a constitutional state enabling humankind’s complete development to their best capabilities. In most of his works, Kant states that a full-value constitution is a republican constitution. As the Kantian republican constitution is based on rationality, making it much similar to the neo-constitutionalist constitution, as the republican constitution is never concerned with the ancient imperialism emphasizing it as a non-political constitution. In this idea, Kant is trying to differentiate the stated republican constitution and much legal one from the previous political constitution, which was much prevalent in his time as natural law. In his beliefs, the pure source of law is the legal constitution and the then believed political one. In Kant’s age and even later, the political constitution was considered much prevalent, whereas the republican constitution with legal content was not a picturesque belief but was valued as general law principles. 

The republican constitution explains all about a law-based constitution. For Kant, the essentiality of a legal system is based on freedom or liberty. Kant believes that “Law is, therefore, set of conditions, under which the freedom of one can be, united with that of the others under the general laws”. The content of positive law is its relation with coercive law and the designated publicity of law. Kant’s “lawful condition” could be termed as the presence of the system of law, as the meaning of Kant’s “Gesetz” is the norm in our terms. The presence of the legal system without the publicity of laws is not possible in positive law. 

Kant believed that the first principle of the republican constitution is freedom which he believed as humans natural and a positive right. Freedom is explained as” independence from the coercive arbitrariness of others, so far as it can persist with the freedom of everyone else on the grounds of general laws.”[7] This explained idea of freedom is engaging from the point of the neo-constitutionalist theory of constitutional review. The Kantian concept of freedom includes multiple fundamental rights such as equality, safeguarding privacy, and freedom of speech. In simple terms, Kant’s freedom concept guaranteed fundamental rights for all in every lawful condition. Kant states freedom as fundamental constitutional rights and every individual’s natural right, which should be applied equally and need not be “acquire” or” derived” similar to other rights present in any system of law. Kant considered constitutional freedom as a fundamental right, to be legally necessary or somewhat obligatory for the legal system’s content.

The second principle of a republican constitution for Kant is the equality of citizens. Being in favor of the French constitution of 1791, he differentiated citizens as active and passive, providing constitutional and legal rights only to the self-sufficient citizens, having economic and social standards better than the ordinary people of that state. The example makes it evident that only influential citizens based on their possessed property or because of their profession may be eligible or qualified to elect, cast a vote or provide an opinion in selecting the state’s sovereign. This elite class’s position is, all the same, not considering their differences in occupation, professionalism, qualification, social strata, or influence on society. Kant mentioned in his notes that public welfare is only achievable at the individuals’ expense or the state’s subjects. The rational implication of a constitutional state was his idea of a well-to-do state. 

In our opinion, his belief in a constitution with the mentioned principle of equality and method of legislation to create a prosperous state ideationally is inevitable. Cause In Kant’s views, the political power and freedom of a subject or individual living in a constitutional state comes with his economic and social conditions; if he has less or no accessibility to the contentions termed, he has absolute right to claim it based on the principle of equality. 

While his opinion is somewhere questionable as he explained freedom as a claimed right and not birth or natural right. Kant always trusted that the sovereign was the supreme power guiding all the state’s subjects elected by society’s elite strata. However, it could not provide social security to the rich or the poor, as their social and economic security depends entirely on the sovereign’s ultimatum or imposition. In present modern-day democracies, citizens’ equality and independence have become inseparable, while in Kant’s age, they were still separable[8]. Kant was never a supporter of democracy, but he counted on a representative form of government distinguishing between legislative and executive powers, allowing voting rights only to the state’s elite or superior individuals. He considered the rich or individuals with economic independence different from other state subjects while the present constitution provides the same right to each citizen, not discriminating them based on their economic or social strata. 

Kant’s claim of representative democracy in a constitutional state is attainable but only if all the state subjects are economically independent, having both freedom and social security. Kant trusted external freedom, independence from societal coercion or pressure from the state’s elite residents, which could only be achieved if only all the state individuals were provided economic, political, and social independence. 

Present-day republicanism is an exemplary practice of liberalism where an individual is not dependent on others’ economic and social position. Kant’s pictured republican constitution was always for the affluent and never for the deprived, subjecting the weaker under the rich’s powerful veil. The lower strata people were considered passive citizens having no right if not claimed under equality. 


In the previous section, we saw that an individual in a constitutional state depends only on his subject to surpass society’s political and economic condition. Thus, providing more importance to the legislative process, its content, and significance on the maintenance of liberty entrusted in the constitution. An individual’s liberty was only exercisable if it does not conflict with others while the required effectiveness is much abided upon imposing equal limitations on each other’s freedom making this the work of the legal disposition and the source of legislation. According to Kant, the concept of legislation is dependent on the perception of action, which means the individual creates the order of his action. Therefore, as a principle, the idea of legislation is determining and providing clarity to all actions. This view is similar to the proposition explaining the statute as an action providing a base to analyze Kant’s explanation on the concept. 

The view follows that a ruler or sovereign has the power to make or command laws derived from each individual on every subject (primarily law), keeping in concern each approval. Kant plans it as a mystical idea of public law applying to all, which he states as the principle of publicity. Kant emphasized his idea of legislation and united the idea of social agreement with the reasonable understanding of the norm, which is fair for him as it complies with his idea of law. 

Reasonable acceptance laws achieved through publicity were the ultimate formula of Kant. He believed in the subject’s acceptance and consent, which could be provided by the participation of the subject in the law-making procedure or its representation in a similarly empowered organ like the parliament. The essential criteria for the validity of this kind of practice are knowledge of the law to all reasonable individuals of the state and their consent and acceptability that they would have taken the same decision if they were in the empowered or position-holder position. While it should be considered that the law made should be subjected to the prevalent norm or circumstance availed or present in the state. The law could be practicable and easily acceptable by the reasonable subjects if they were excluded from the elite suppression in ideal situations while allowing its conductance in rational form. In the procurement of the concept of legislation, Kant allowed communication rights like discussions debates among the representative or elite class subjects holding constitutional rights and liberties as he believed it would facilitate better lawful decisions, making the procedure effective and efficient. 

It could be easily substantiated from this that Kant believed in providing constitutional rights to the elite class, not considering all individuals present in that society. Thus, overpowering the elite class decisions on each and every suppressing individual right of the weaker subjects. The only way to stop this bifurcation was through a judicial body, but Kant did not believe in the judiciary as he believed the constitution as a social agreement could justify both the bodies. 

Constitutional democracy is tough to attain without formal institutions and orders. According to Kant, the fundamental rights or the then considered natural rights could not be guaranteed by the procedure of constitutional democracy. He did not believe in active aggression if some unjust is caused, which is even against the concept of legislation that should be solved with conversing or reasoning or argumentation. For a sovereign or ruler, the constitution’s rights are lawful positions defining his role in the fulfillment of the concept of legislation. The mentioned belief conceptualizes fundamental rights as perfect natural law, never subjecting to statutory riddance unexplained by the process of constitutional democracy.

 Neo-constitutionalism or modern constitutionalism can be termed or understood as a form of lawful constitutionalism emphasizing the attainment of individual or personal rights while also protecting it through judicial power or actions. This concept of modern constitutionalism is a rational justification, not a philosophical one provided by the public. While applying constitutional equality, most constitutional courts use 1the principle of public justifiability as a test of reasonableness of classification by the legislator. 

For Kant, the philosophers are to protect the rights obtained naturally of a human is by public reasoning as in his era the rights now used fundamental or basic rights were devolved by the philosophers or what he called them as ‘free scholars.’ As a retrospective effect, his view of reasonable law is the rights given by the constitution of the positive perfect legal system in modern constitutionalism are never considered rightful legal rights in the earlier centuries (18-19th) although being in the constitution. It was the public’s opinion that protected the constitution as he thought that the rights were not protected by any lawyers but more by the ‘free scholars.’ In Kant’s terms, the modern constitution could be regarded as public use of reason and enforces the maxim of legislation given by the philosopher. 

Furthermore, by contrasting it with Hobbs saying that nobody should be obligated to obey coercion and convince the subjects about the legality of power. Hence, a constitutional state’s legality is to be based on the lawful force giving power against the coercive one.


Constraint positivism, or legal positivism, is derived from the Latin word where the word positivism came from the word positus, which means firmly affix the existence of something. The English political thinker John Thomas Hobbs stated that “before the names of just and unjust can occur, there must be some coercive power to compel men equally to the performance of their covenants” [9]. He mostly stressed on the care of the sovereign is to make good laws. Whereas Austin was known for the principle of legal positivism, he said that the existence of law is one thing, whereas the merits and demerits are another. Whether it is there or not is one inquiry, and whether it is comfortable or not is another inquiry. Moreover, that law exists whether it is liked or disliked. Furthermore, that law is the command of the sovereign. 

Kant’s view on legal positivism had a powerful influence on legal philosophy, and he believes that the state has a moral duty and not just a right to execute murderers. He believed that the truth must be told, promises to be kept, and property to be returned to the rightful owner. If justice goes, there is no longer any value in men’s life on the earth, making people think justice matters more than conflicts and inconveniences and that man will do what is right and just to them. His legal philosophy contribution is primary beneficence; it may be in general or detail form or substance.

 Now when we come to Doctrine of Right, as Kant stated, “I am not under obligation to leave external objects belonging to others untouched unless everyone else provides me assurance that he will behave following the same principle concerning what is mine. It will put everyone under the obligation hence only a collective general and powerful will that can provide everyone this assurance”[10]. Here he talks in regard to the property where he says that when there is an obligation kept, only then will there be an assurance to the property and that while others obligate to give assurance and that to behave and treat the property as of its of their own.

 He mostly talks about morals and that an individual comes under an obligation of his moral choice and actions. And when it comes to rights, Kant thought of them as the imitative of human freedom[11]. He also believed that there are several ways by which we can understand relations and that a connection between the doctrine of right and practical philosophy is absent and obscure, leading to the right to morality. As to know about the doctrine of right is that it tells the transition of public law to private law and tells about a system of rights like it talks about the right to be treated equally under the law and it tells about the legal right a person has and can acquire[12]. According to Kant, a good person does their duty knowing that it is his duty and that it has to be done and that a person is obliged to do what his rights say. 

As we come to Utilitarianism, 1it is known to be one of the best moral theories; it focuses on right and wrong based on their outcomes. Mill defines it as “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness.” whereas Bentham defines it as “more of pleasure and less of pain” by this, he says people tend to do things that give them more pleasure than things that give them pain. However, 1when it comes to Kant, he was a person who opposed Utilitarianism. Kant and Utilitarianism both have different ways to define as to an act is either right or wrong; according to Kant, we should see the intention of the particular action. 

The Kantians believe that humans are rational beings and should behave rationally, not based on their happiness, whereas the utilitarian’s think that we should do actions that give us happiness. Nevertheless, it becomes easier to determine that moral actions are right in Kantians rather than Utilitarianism. He believed that there was the supremacy of morality rather than anything else and hence told what makes a person suitable and said a person’s action depends on their moral worth and is more than seeing as to the principle of right and wrong[13]. Kantians kept moral ethics more than pleasure, whereas the utilitarian has thought more of the opposite. Utilitarianism means more of utility, where Kant criticized the concept as he thought that pleasure is not to be kept as a priority to a human being and that they should reason. His utilitarianism idea 1is that it treats humans as a means and not an end in themselves, and finding similarities between them is rather tricky as his thoughts were opposite to that of Utilitarianism.

 As we talk about Retributive Justice, the word came from a Latin attribution which means paying back. In this, the punishment is to the same extent as the crime committed. It is also called the ‘eye to eye’ justice. And as we talk about Kant and his views were on the philosophical significance of the sort of controversies about justice and rights in which he participated. 

The philosopher Kant believed that his theory of retributive justice was based on logic and reason. His ideas about justice were non-utilitarian, and his views were controversial and hence issues between the utilitarian and the non-utilitarian. He 1said that the only way for punishment is that the criminal ‘deserves it’ as he always states that people should act morally correct and that one’s desires cannot be taken into account[14]. He thought that capital punishment is suitable for murders as he believed in the punishment to be equal to the crime, in this case,’ life for a life.’ As we know his thoughts on harsh punishment, his theories on justice have been criticized the most. He thought that no one should be relieved of what they did. 


Kant emphasizes morality and states that it “arises and can only arise through freedom “[15], through which he explains freedom not only makes morality possible but also determines it. Keeping the latter in view, Kant assumed that he could answer natural law questions indicating the possibility and utilization of an individual’s freedom. He accepted that human nature does not always act as its morality requires due to insufficiency of what he terms as the “holy will.” In contrast, morality and freedom are the same unless law adheres to morality, not forfeiting an individual’s freedom. We all know that the only public evidence of moral law is a positive law, and its contrast will be equal to opposing the development of society administered by the moral law.

 This ideology explains that resistance fortified by the authority must be wrong because it reduces rule of law and exhausts the procurement of society following moral law. This imperative is diminished somewhat by Kant’s vision of a community known as “The Kingdom of Ends, “where an individual’s freedom is honored by the freedom of every other person. Kant elucidates that the” 8history of the human race can be regarded as a realization of a hidden plan of nature to bring about an internally and for the purpose also externally perfect political constitution as the only possible state with which all-natural capacities of humankind can be developed completely”[16]a noble idea yet doubtful in today’s scenario.


Kant was always the man of classics who should be left there because of various reasons. This includes his idea of a platonic constitution briefing man’s natural rights, everybody bounded by law, and a legislator being on equal footing with others. The republican constitution is basically considered as a state in which the constitution is the principal condition for all external obligations. 

In our vision, Kant’s legal system primarily and practically consists of innumerable limitations on freedom of conduct and he claims the objective behind it being the protection of external freedom of individuals including property. Kant never conceives a society with legal force and political power, which makes his conception of humankind very pessimistic. For him, the political society was not based on participant’s morality but practical morality and necessity. 

He mentions that when one thinks about justice, one must recognize that others are thinking about justice and one’s confident object of the conclusion should match with others too, the irony being this self-righteousness symmetry can never be implied as each of the two opponents may believe he is right. From Kant’s point of view, the legal constraint protects external freedom and thereby maintains the ethical, natural state necessary for the autonomous moral life. 

Kant set out the advantages of positive law and explained the negatives of its abandoning yet not denying the judgments from justice and right. Simultaneously, explaining it as the modes of thought that one deploys in the process of making moral criticism of existing law. Nevertheless, if society needs only one viewpoint for a particular matter, the members have had different opinions to get an optimistic view, and the ground for one allegiance cannot be predicted by judgment but moral righteousness. That is the positivist position and Kant’s contribution linked with position conclusively helping us to trace the idea of a set of property rights, secured and assured as a system

[1] Bob Jessop, Nicos Poulantzas: marxist theory and political strategy(1985).

[2] Chakravarti K,Words and phrases under the Constitution (Calcutta: Eastern Law House,1986).

[3] Angus Ross, A Textual Introduction To Social and Political Theory(Manchester University press,1996)

[4] Mark C.Murphy, Acceptance of Authority and the Duty to comply with just institutions :A comment on

Waldron ,23 PHIL & PUB.AFF.271,276(1994)

[5] Scholarship.kentlaw.iit.edu. 2021. [online] Available at: <http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1028&context=ckjicl> [Accessed 4 January 2020].

[6] Mark C.Murphy, Acceptance of Authority and the Duty to comply with just institutions :A comment on

Waldron ,23 PHIL &amp; PUB.AFF.271,276(1994)

[7] J.,Waldron, Theories of Rights(.Oxford, 1984)

[8] Pettit, P., 1997. Republicanism. Oxford: Oxford University Press.

[9] Plato.stanford.edu. 2021. Legal Positivism (Stanford Encyclopedia of Philosophy). [online] Available at: <https://plato.stanford.edu/entries/legal-positivism/> [Accessed 17 January 2021].

[10]2021. [online] Available at: <https://www.lawteacher.net/free-legal-essays/jurispruence/legalpositivism.php> [Accessed 18 January 2021].

[11] Ethan Hallerman,The Basics of the Doctrine of right in Kant’s Moral Philosophy, <https://www.ecpr.eu/events/paper details.aspa>[SEP.17.2019,9:30PM],


[13] Rachel Sirotkin , Kantianism&amp;gt; Utilitarianism, PH11:Introduction to ethics

    <https://scholarblogs.emory.edu>,[Sep.17.2019,9:40 PM]

[14] Immanuel Kant Theory of Justice<https://www.ukessays.com>,[Sep.17.2019,10:00 PM]

[15] George, R., 1996. Natural law, liberalism, and morality. Oxford: Clarendon Press.

[16] Rorty, A. and Schmidt, J., 2012. Kant’s idea for a universal history with a cosmopolitan aim. Cambridge: Cambridge University Press.

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