Founding Acts. Serdar Tekin
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other challenge came from David Hume. Unlike Filmer, Hume did not attack the idea of consent in the name of the divine rights of kings. He admits that “consent is one just foundation of government where it has place,” and “it is surely the best and most sacred of any”—the problem is rather that “it has very seldom had place in any degree, and never almost in its full extent.”10 States are ordinarily established by force and violence, Hume observes, not through consent or voluntary association. “Almost all the governments, which exist at present, or of which there remains any record in story, have been founded originally, either on usurpation or conquest, or both, without any pretence of a fair consent, or voluntary subjection of the people.”11 While in an already established state, “in a settled constitution,” people’s inclinations are occasionally taken into consideration, Hume further observes, “were one to choose a period of time, when the people’s consent was the least regarded in public transactions, it would be precisely on the establishment of a new government”—that is to say, it is precisely in founding moments, “during the fury of revolutions, conquests, and public convulsions,” that consent is systematically disregarded and “military force or political craft usually decides the controversy.”12
These may seem as merely descriptive claims about the historical origins of political order. Yet Hume’s point is more subtle than it seems at first sight. He intends to suggest that historical origins of political order should not be viewed as irrelevant to the ways we make sense of its moral foundations. Political legitimacy (on the part of government) and political obligation (on the part of the people) do not actually rest on consent. The fact that states have originated in violence and attained legitimacy over time points toward a ground other than popular consent or voluntary agreement. According to Hume, to grasp this other source of legitimacy, one needs to inquire into habit and utility, into “the general interests and necessities of society,” into how “time and custom give authority to all forms of government” and how “power, which at first was founded only on injustice and violence, becomes in time legal and obligatory.”13
In drawing our attention to the gradual growth, via custom and utility, of a sense of legitimacy from a violent origin, Hume also touches on the retrospective justification of unjust beginnings in the imagination of present generations, thereby bringing up, at least by implication, the issue of the obliteration of founding violence. Consider the following passage: “Tho’ the accession of the Prince of Orange to the throne might at first give occasion to many disputes, and his title be contested, it ought not now to appear doubtful, but must have acquir’d a sufficient authority from those three princes, who have succeeded him upon the same title. Nothing is more usual, tho’ nothing may, at first sight, appear more unreasonable, than this way of thinking. Princes often seem to acquire a right from their successors, as well as from their ancestors.”14 The strange condition mentioned by Hume—that of a prince acquiring a title from his successors—is by no means peculiar to monarchy but applies to every founding act, including those with a democratic claim. In this respect, his remark about the Prince of Orange intriguingly resonates with Jacques Derrida’s reflections on the retrospective justification of revolutionary violence: “All revolutionary situations … justify the recourse to violence by alleging the founding, in progress or to come, of a new law. As this law to come will in return legitimate, retrospectively, the violence that may offend the sense of justice, its future anterior already justifies it.”15 Derrida makes this point in the context of a discussion about the paradox of founding, which we will explore at length in Chapter 2.
The Founding Act of the People as an “Idea of Reason”: Kant
One way to counter Filmer’s and Hume’s objections to the consent theory of political legitimacy is to offer a “hypothetical” account of popular sovereignty. In this kind of argument, the stress is not on the actual consent of the people but on what the people would consent to if they were to act on good will and right reason.16 In other words, “the people,” understood as a corporate body acting on a unanimous will and speaking in a single voice, is not an empirical reality and does not need to be. Rather, it is a vision of political legitimacy, a normative idea, according to which all political power comes from the united will of citizens and therefore ought to be structured in terms of the equal freedom and generalizable interests of everyone. This hypothetical conception of popular sovereignty is most systematically developed by Kant.
Speaking from within the contractarian tradition, Kant presents the founding act of the people as the “original contract,” while at the same time urging that this contract should not be taken as a historical event: “as a fact it is indeed not possible,” he notes, “it is instead only an idea of reason.”17 Or as he puts it elsewhere in a more systematic fashion: “The act by which a people forms itself into a state is the original contract. Properly speaking, the original contract is only the idea of this act, in terms of which alone we can think of the legitimacy of a state. In accordance with the original contract, everyone (omnes et singuli) within a people gives up his external freedom in order to take it up again immediately as a member of a commonwealth, that is, of a people considered as a state (universi).”18 Kant’s point is that the normative structure of the state, as a public order in which coercive power ought to be compatible with and justifiable in terms of individual freedom, makes sense only in light of the notion of self-determination—that is, the idea of a sovereign people placing themselves under a self-legislated law. This does not mean that citizens ought to be the actual authors of their constitution, but that actual legislators and constitution makers (whoever they happen to be) ought to give their laws “in such a way that they could have arisen from the united will of a whole people and to regard each subject, insofar as he wants to be a citizen, as if he has joined in voting for such a will.”19 Hence the main point of Kant’s claim: the founding act of the people is an “idea of reason.”
By presenting the original contract in this way, Kant aims at two things at once: to disentangle the concept of popular sovereignty from the troublesome problem of demonstrating actual consent, and to counter what he takes to be the historicist misunderstanding of the social contract theory such as Hume’s claim that states are ordinarily founded through force and violence, and not through consent or voluntary agreement. Kant admits the historical unreality of a consensual act of foundation, but does not regard this as a refutation of contractarian arguments. He can easily afford to do so because the original contract is an “idea of reason,” which has nothing to do with actual consent and the kind of historical contingencies that Hume is keen to highlight. What makes this solution work, however, needs to be spelled out more clearly.
Kant draws a clear distinction between the actual origins of the state and the normative foundations according to which its legitimacy is to be understood. In a sense, this distinction was already established by Hobbes in the Leviathan. According to Hobbes, even though “there is scarce a commonwealth in the world whose beginnings can in conscience be justified,” there nevertheless exists no de jure difference between a “commonwealth by institution” and a “commonwealth by acquisition.”20 That is to say, political authority may have been established as well through force and conquest (“acquisition”) as through contract (“institution”) because “the rights and consequences of sovereignty are the same in both.”21 Kant follows Hobbes on this score. “Whether a state began with an actual contract of submission (pactum subjectionis civilis) as a fact, or whether power came first and law arrived only afterward, or even whether they should have followed in this order,” he maintains emphatically, “for a people already subject to civil law these subtle reasonings are altogether pointless.”22 The basic idea is that there is a sharp distinction to be drawn between “origins” and “foundations,” between the way in which a political community happens to be established and the normative principles that it is supposed to rest on. While the former is a “question of fact” regarding historical contingencies which may unfold in all sorts of ways, the latter is a “question of right” regarding principles—and no matter what, the two should not be conflated.
With regards to the “question of right” under consideration, however,