Social Contract and Public Opinion - Two Political 
Concepts of the Enlightenment 
Kant's notion of »publicity« in the context of the development of 
the concept of »public opinion« 
Gorazd Korosec 
The concepts of social contract and public opinion have played a crucial role in political self-perception of European societies for a number of 
centuries. They are two expressions of modern European rationalism and their 
importance is becoming more and more central today. They are seen as two 
cornerstones of modern liberty, albeit in its necessary relationship with author-
ity. The question of the political organization of present-day Europe can 
therefore scarcely be conceived without being articulated in terms of, or at 
least with recourse to these two concepts. We will therefore try to analyze an 
important stage in their development, namely the era of Enlightenment, when 
with the French revolution and the subsequent controversy surrounding it and 
its meaning for political history of the European continent, the concept of 
social contract, as articulated last by Immanuel Kant, declined and came under 
severe criticism, at the same time as the concept of public opinion entered the 
foreground as an object of political analysis and was given some of its most 
important and recognizable characteristics. 
The two concepts play important roles in political discourses, roles which are 
not identical and which can be related in different ways in the ideologies of 
liberalism, conservatism, democracy and socialism. We will therefore take a 
brief look at their interplay and changing relations. 
Sir Henry Maine said in a well-known phrase that modern societies have 
undergone a transformation »from Status to Contract«1, meaning a strict rule 
of law. The political theory of social contract, with theorists like Hobbes, 
Locke, Rousseau and Kant, has an important role in this process, emphasizing 
at the same time the importance of legal theory in the constitution of modern 
political societies. 
We will begin our examination with Kant's theory, which contains a detailed 
articulation of both social contract and publicity, that is to say, public opinion. 
We will first analyze Kant's distinction between the private and public use of 
one's own reason, in order to elucidate the character of his distinction between 
1. Sir Henry Maine, Ancient Law, London 1861, p. 151. 
Fil. vest. /Acta Phil., XIV (2/1993), 57-81. 
58 Gorazd Korošec 
the public and private spheres, to point out its difficulties and problems and 
thus to find the reason for the decline of Kantian contract theory. We will then 
compare it with theories and critical remarks by Burke, Bentham and Constant, 
directed against his rationalism, concept of law and understanding of liberty 
and public opinion. 
It is well known that the tradition of social contract from Hobbes (or better, 
Aquinas) on has built on notions of consent, voluntary agreement, legitimacy, 
sovereignty, the rule of law, necessary or minimum conditions of civil or 
political society, the relationship between reason, authority and liberty, civil 
and moral law etc. Social contract should be a guarantee of the security of life, 
liberty and property. Civil laws should therefore be rational, general, abstract 
and permanent. And perhaps Habermas is right in claiming that Hobbes also 
made room for the development of the notion of public opinion. 
With Locke, social contract theory becomes the basis for a justification not 
only of government, but also of legitimate resistance to an illegitimate author-
ity. With Rousseau it becomes legitimation for the overthrow of every existing 
political order. It is evident that such theories have exercised influence, al-
though in rather different ways, on the events of the English, American and 
French revolutions and on the rise of liberalism. 
But if one aim of the Enlightenment was to establish a rational authority 
through a process of subjecting government, understood as the expression of 
will, to the demands of reason, dictated either by public opinion or the idea of 
social contract, it remains a fact that the Enlightenment owes its second face to 
its intention to bring under control people's irrational passions, which are also 
in need of subjection to the demands of reason. And on the grounds of such a 
purpose, notions of will and reason could be built into a different relation 
within a theory of government, reason being an attribute of government, while 
irrational will is left to the governed. This is, for example, Hume's view, but he 
maintains that government should be a »government of laws«, necessarily 
limited by laws themselves and by no means a mere government of men. 
However, we will soon see how odd the consequences of this second stand-
point could be in other enlightened authors, particularly in Kant. 
Our primary aim is to outline and examine Kant's notion of publicity and to 
assess it in the context of the development of the concept of public opinion. 
Given that Kant's theory of social contract - some of the most important 
problems of which have already been described and indicated elsewhere2 -
contains the same basic arguments or premises as the theories of his predeces-
2. Gorazd Korošec, »Kant, razsvetljenstvo in razvoj ter iztek teorije družbene pogodbe«, 
Filozofski Vestnik XIV, 1/1993. 
Social Contract and Public Opinion 59 
sors, it is clear that the notion of publicity must play a central role within it. If 
his theory should answer the question »What fundamental principles must 
underlie any system of law, if it is to be legitimate?«3, he must express the 
demand that laws be stated publicly, presented to the public and subject to the 
possibility of criticism. If their public acknowledgement arouses opposition, 
they are not just. Kant states this claim in the following words: »All actions 
that affect the rights of other men are wrong if their maxim is not consistent 
with publicity«.4 The Principle of publicity, itself a version of Kant's Law of 
Autonomy, should secure the justice of civil laws. They should conform to the 
Categorical Imperative in the form of the »Universal Principle of Right«: 
»Every action is right that in itself or in its maxim is such that the freedom of 
the will of each can coexist together with the freedom of everyone in accor-
dance with a universal law.«5 
The demands of publicity could be of course satisfied only in conditions of 
effective freedom of speech. Therefore Kant exhorts his readers with the 
exclamation: »Sapere aude!«, »Dare to use your own reason!« and demands 
the unrestricted public use of reason. It is necessary for freedom as such and 
for the enlightening of the public itself. Besides this, Kant gives a more 
detailed description of the public use of reason: 
»By the public use of one's own reason I understand the use that anyone as a 
scholar makes of reason before the entire literate world. I call the private use 
of reason that which a person may make of it in a civic post or office that has 
been entrusted to him.«6 
Up to this point, everything sounds right and well. But here the problems 
begin. If we know that Kant's formula for the conditions that should enable the 
free public use of reason reads: »Reason, but obey!« or »Argue as much as you 
want and about what you want, but obey!«7, we should not yet see something 
very problematic in this. Positive law should be obeyed if law is to exist at all. 
The other thing that really surprises us is his rather curious definition of the 
private use of reason and distinction between the public and private spheres 
3. Immanuel Kant, The Metaphysical Elements of Justice (first part of The Metaphysics of 
Morals (1797)), trans. John Ladd, Bobbs-Merrill, Indianapolis 1965, Preface, pp. 3-8; Kants 
gesammelte Schriften (KGS), Königliche Preussische Akademie der Wissenschaften, Walter 
de Gruyter, Berlin 1902- , vol. VI. The question is, of course, analogous to fundamental 
questions of his three Critiques. 
4. Immanuel Kant, Perpetual Peace: A Philosophic Sketch, in Perpetual Peace and Other 
Essays, trans. Ted Humphrey, Hackett, Indianapolis 1983, p. 139; KGS VIII, 381. 
5. I. Kant, The Metaphysical Elements of Justice, p. 33; KGS VI, 230. 
6. I. Kant, What is Enlightenment?, in Perpetual Peace..., p. 43; KGS VIII, 37. 
7. Ibid. 
60 Gorazd Korošec 
that proceeds from it. We will examine this problem more closely to get a more 
exact picture of the advantages and disadvantages of Kant's political philoso-
phy. 
We can see that Kant opposes limitations on the public use of reason, which is 
beneficial for the freedom of the mind, but accepts limitations on civil liberty, 
which in his view could be limited to a very considerable degree without great 
damage to human freedom. And in civil life, Kant claims, men use their reason 
in private way. Here their liberty could be strictly limited, because in actions in 
the public or common interest, government could coerce the individual and 
direct him towards the common purpose. Here he is only a wheel in the 
machine, he must obey, not argue} Even a strong army which should prevent 
civil disobedience and unrest as a result of abuse of the private use of reason 
and civil liberties is for Kant a guarantee of the freedom of speech. 
An individual therefore has no private discretion in carrying out his bureau-
cratic role. In civil, as opposed to spiritual, life he must obey, not reason, and 
his civil liberties could be restricted arbitrarily. Kant here uses the word 
»private« in its etymological sense of being without - deprived of - power. 
Obedience is indeed absolute: the citizen has an unconditional moral and civil 
injunction to obey even unjust laws.9 In the private sphere no free use of 
reason, expression of opinion or pursuit of private interest is allowed. So the 
price for the free public use of reason is an abandonment of private interests 
and private freedom. 
Everyone should leave his privacy and enter the public sphere only as a 
scholar, because the general will, undisturbed by private interests, is to be 
expressed there. So freedom of the press is the only palladium of men's liberty, 
with the limitation that it must not put into question obedience to the authori-
ties. Kant therefore forbids discussion about the origin of authority. Kant is 
also a severe opponent of any secret societies, even if their existence is due to 
censorship. If morals and reason should exercise influence upon politics, no 
private morality (of which Kant denies the possibility anyway) or private 
interest should enter public sphere. 
A very rigorous scheme indeed. Kant's individual capable of his legislative 
function, that is of giving consent to the laws, ceases to be an individual, he is 
pure homo noumenon. In regard to freedom of the mind, Kant recognizes that 
public freedom of speech is necessary for (private) freedom of thought, be-
cause validity of one's thought can only be tested in communication, but he 
8. Ibid., p. 44;KGSVIII,38. 
9. I. Kant, On the Proverb: That May Be True in Theory but Is of No Practical Use, in Perpetual 
Peace..., p. 84; AGS VIII, 299. 
Social Contract and Public Opinion 61 
fails to recognize the contrary causal relation: to put it in Tocqueville's terms, 
freedom in great things is impossible without freedom in small ones, therefore 
the latter is more important; freedom of the mind is therefore impossible 
without civil freedom, freedom in everyday things and occupations, without 
freedom becoming a habit. If obedience becomes a habit, freedom is irrevers-
ibly lost. This is Tocqueville's answer to Kant's typical enlightened rationalis-
tic illusion that absolute obedience and freedom can coexist, that free reason 
would not become contaminated with obedience. Even if Kant is here follow-
ing Hume in his concern not to claim too great an extent of liberty, he is much 
to anxious in this effort, which leads him to an excessive restriction of liberty. 
We can gain an even more thorough insight into this problem in Kant's 
Conflict of the Faculties,10 Here we see that he divides even academic reason 
into free and unfree, whereby the former is reserved for the faculty of arts 
(Kant of course uses German term »faculty of philosophy« and it is plain that 
in his opinion department of philosophy should play the leading role within it), 
which serves only the interests of reason, while the latter is applied to the 
remaining three. Professors of law are not free to use their own reason: they are 
bound to teach according to the statutes, which are a product of the arbitrary 
will of authority, so that they can use their reason only in a private way. The 
autonomy of the university is thus denied (although the faculty of arts is here at 
least partly excepted), and with it also the independence of the juridical branch 
of authority. 
He again maintains that all subjective motives should be excluded from aca-
demic discussions and so he introduces a further distinction between the civil 
and the learned, scholarly public. He attacks civil orators who try to influence 
public's passions and customs, demanding new social arrangements and anar-
chy. Because people reject reason and are subject to passions, the task of 
faculty employees is to serve the state in order to adjust public inclinations to 
their duties. This is a private purpose of the lawgiver, but again the private 
purpose cannot be law. 
Reason alone should be the judge and the source of laws. In order to achieve 
this, Kant suggests the establishment of a parliament of faculties, in which 
members of the faculty of arts would defend the cause of truth. They should 
become advisers to the authorities and, as free teachers of law, enlighten the 
public about their duties and rights. 
We can see clearly enough that his ideal participant in free public discussion or 
the use of reason is a philosopher. He is the public man, that is an ideal 
10.1. Kant, Conflict of the Faculties, trans. Mary J. Gregor and Robert E. Anchor, Abaris Books, 
New York 1979; KGS VII. 
62 Gorazd Korošec 
legislator or one that could consent to the laws and make judgements about 
them. While even a professor of law, although he uses his reason, is doing this 
in the name of and at the command of another, a philosopher alone is capable 
of giving up his private interests, taming his passions and acting freely for the 
good of the community. 
This scheme and especially the emphasis on the ideal citizen being a philoso-
pher, at once runs up against serious difficulties. We know that Kant allows 
the status of active citizenship, characterized by an ability to consent to the 
laws and participation in public discussions, only the owners of property, 
which is indeed understood in quite a wide sense. A proprietor is thus one 
whose property secures him a means of living and therefore political autonomy 
or independence. He serves nobody but the community and in the worse case 
he lets his property in order to maintain himself. A non-proprietor, in contrast, 
is someone who must agree to the exploitation of his working capacity. 
Kant must of course strive to include learned men under active citizens, so he 
maintains that intellectual capacities should also count as property. Here he is 
indeed not very convincing, as Ryan says," when he tries to distinguish 
between a private tutor, who in his view has no property, works on another's 
orders and is therefore not free (where freedom means being one's own 
master), and an academic professor, who is free and has property. If we 
consider the role of a professor of law in this light, we soon encounter serious 
paradoxes. As we have seen, this professor is not free to reason freely in his 
work, but is bound to work according to the commands of the state, which 
again directs his work towards the common good. So he is at first without the 
property and freedom of the active citizen, because he works in the name of 
another, but again he serves the community, this service being a private 
purpose of a lawgiver. But in his spare time, retaining his intellectual capaci-
ties, which can now be understood as property, he can as a scholar participate 
in the public use of reason, thus contributing to the good of the community. We 
thus have, on the one hand, someone who from being a non-proprietor in his 
spare time, in an unexplained way, becomes a proprietor, and on the other side, 
service to the community alone, which is in itself a private purpose. And if we 
consider closely the example of a private tutor or any other proprietor, we will 
come to similar paradoxes. 
There is of course a way out from this aporetic argument, resulting from Kant's 
troublesome definitions, which consists in an answer that, on the one hand, the 
state does not serve the community in a pure, that is pure reasonable, way and 
that the community it serves is not a wholly reasonable one, and on the other 
11. Alan Ryan, Property and Political Theory, Basil Blackwell, Oxford 1984, p. 87. 
Social Contract and Public Opinion 63 
hand, of course, that a citizen can participate in a free public discussion not 
just only as a scholar, but moreover, only as a philosopher. 
A further consequence of this is that the owners who are part of the public and 
who in the sphere of free exchange pursue their private interest, thus serving 
the community, can only enter the public sphere by abandoning the very same 
private interests. One could ask a naive question as to whether individuals, 
apart from being philosophers, do not use their own reason in pursuing their 
private interests. And the Kantian answer is of course no, because the pursuit 
of benefit alone, not matter how ingenious, does not deserve the dignity of 
reason. Moreover, it is acknowledged only if conformed with the good of the 
community. 
If we know this and if we remember that in all other areas besides the 
philosophical public use of reason purified of private interests, the state has the 
right to direct one for the good of community, the extent of the private sphere 
suddenly appears rather narrow and the field of public or government control 
quite wide. Kant's views on the nature of civil law confirm this observation. He 
does not admit any private law, i.e. law regulating free exchanges of private 
individuals, commonly regarded as private law Kant terms public law. He 
regards private law as a characteristic of the pre-civil state, while in the civil 
state all law is public law. His ideas on property and property rights naturally 
accord with this view. His foundation of property rights is similar to his 
foundation of contract. Law must guarantee the property of the individual, but 
rights deriving from this property Kant understands (just as rights deriving 
from a contract) not only as physical, but as rational possession, that is 
possession, even if not actual, according to the word of law. His views of law 
are based on Roman law, but he goes even further in breaching the distinction 
in Roman law between personal and proprietary relations and rights, jus ad 
personam and jus in rem, reducing all relations and rights to property rights 
and relations.12 In Roman law property is a real right or right in rem, because 
the right to a thing possessed is good against all the world, while a personal 
right or right ad personam proceeds from a private contract and is good only 
against the person with whom one has made the contract. 
So the property rights in Kant's theory are also not based on occupation and 
use, as in Locke, but on the rational intention of a member of society to occupy 
a thing and make it his possession by subjecting it to his will. Society must 
recognize this rational intention on the part of its member and it therefore has a 
right to confer individual property rights. And of course it follows from this 
that the state must have a certain reserve authority to intervene in the distribu-
tion of property in the name of the public good. 
12. Ibid., p. 83 sq. 
64 Gorazd Korošec 
Again we see that Kant in fact does not allow the existence of private con-
tracts, that all contracts in his view are dependent on acknowledgement of 
community, so that every contract necessarily has a social dimension; every 
contract is already a social one. He indeed understands people's rights as their 
possession, but as a rational one, which need not actually exist. 
We can now answer the question as to why Kant's understanding of the private 
sphere is so narrow and that of the public sphere so wide. Given what has been 
said already, we can easily recognize in his political theory a mercantilistic 
scheme of public or governmental control and regulation of the field of 
citizens' private behaviour and political conduct and the sphere of economic 
relations in which government is obliged to take care of the public good. 
We must be aware that in the Germany of Kant's day, public opinion, both as a 
theoretical concept and in political practice, was still at an early stage of 
development. Public opinion as we understand it today, that is in its classical 
form, did not appear until the 1830s,13 when it finds its place at private 
meetings and in newspapers, but even then it has.to contend with censorship.14 
Absolutism was still firmly in place, strong and intact. Consequently, the term 
public still denoted primarily public authorities and there was not yet a sepa-
rate »private« sphere, liberated from government regulation, part of which 
would also represent market relations. The private sphere as such was there-
fore only beginning to develop and was still subject to mercantilistic regula-
tion. 
The same is true of the development of private law, which was later to be 
codified through the positivization of natural law, but was still subject to 
numerous old limitations and needed almost a centuiy to acquire its place and 
form. 
In this historical context, Kant's political ideas are to be understood as an effort 
to encourage further development of the mercantilistic regulation of the public 
good under absolutism into a more enlightened form, in the way he thinks most 
appropriate. Kant in his defence of the function of the enlightened monarch 
shares the belief of French Physiocrats who defend legal despotism as a means 
13. Jürgen Habermas, Strukturwandel der Öffentlichkeit,Hermann Luehterhand Verlag, Berlin 
1962. Slovene trans. Strukturne spremembe javnosti, tr. Ivo Standeker, Studia Humanitatis, 
Ljubljana 1979, p. 87. 
14. Kant too, while writing on such controversial subjects as politics and religion, must consider 
the possibility of censorship. His experience of it in regard to his work Religion Within the 
Limits of Reason Alone,, is well known. He wrote to his friend Mendelssohn: »I am absolutely 
convinced of many things that I shall never have the courage to say.« This could of course help 
to explain some of his ambiguities, but it is not enough to change the whole picture of his 
political philosophy. 
Social Contract and Public Opinion 65 
of establishing the rule of public opinion.15 We must bear in mind that in 
France and Germany at this time, public opinion was even in the view of 
theorists strictly separated from the legislative function, so that this solution 
appears as the only possibility for them. But the enlightened monarch remains 
a fiction. The only possible way towards the rule of law and legislation in 
accordance with public opinion is a strengthening of the legislative role of 
parliament as a body of the people's or public's political representatives, which 
could be achieved only in open political contest and with the participation of 
the public in exercising influence over political and legislative decisions. 
But this is precisely what is missing from Kant's scheme and is something that 
Kant wishes to avoid. Instead of a political parliament with a legislative 
function, he demands a powerless parliament of philosophers which should 
enlighten the monarch. It is indeed true that in the conditions of royal absolut-
ism the insistence on the rule of law and rejection of arbitrary rule is even more 
important, as Hayek remarks about Kant,16 and Kant indeed has contributed to 
such endeavour. The trouble with his theory is that it is not capable of offering 
a means to secure the existence of the rule of law. And Kant's belief in a 
monarch's deliberate project to bring about enlightenment and freedom from 
above openly contradicts Hayek's convictions about planning. 
We know that public opinion and its influence on politics, as well as the legal 
form of private law and the institutions of the free market, which are crucial to 
the modern understanding of the private sphere, developed earlier in the 
countries with common law legal tradition, that is in Britain and America, than 
in countries with Roman law tradition, such as France and Germany.17 This 
was largely due to the legislative role of parliament, also rooted in common 
law, which enables the establishment of the rule of law within a limited 
monarchy. The mercantilistic phase was there already exceeded and succeeded 
by modern liberal values of defending privacy, pursuing private interests, 
exercising influence over legislation through elected representatives and re-
jecting government interference into self-regulating market relations, which in 
themselves as a sum of different competing interests are directed towards 
improvement of the public good. Locke with his articulation of social contract 
theory stood at the beginning of this development. 
We can add here as a comment to Kant's views a historical account, revealing 
15. Habermas, op. cit., p. 97. And Pocock is probably right when in contrast to this approach he 
terms the corresponding contemporary English movement, most notably represented by 
Adam Smith, legal humanism. J.G.A. Pocock, Virtue, Commerce, and History, Cambridge 
University Press, Cambridge 1985, p. 50. 
16. F.A. Hayek, The Constitution of Liberty, Routledge & Kegan Paul, London 1960, pp. 196-
197. 
17. Habermas, op. cit., p. 91. 
66 Gorazd Korošec 
that the term public opinion, in the sense of the opinion of the general public as 
opposed to public authority, seeking to influence, control and shape the latter, 
has developed from the private opinion of the citizens gradually entering 
discussions in the public sphere, so that public opinion first emerged in 
discussions at private meetings and coffeehouses, where private freedom of 
speech or the private use of reason was regarded as being as essential as daily 
bread and was in this early stage of its development dependent on secrecy; it 
needed to be closed to the public in order to survive, because of the dangers of 
censorship and punishment.18 
Given Kant's rejection of the public or political participation of private citizens 
with private or, worse still, selfish interests, his well-known example of 
organizing the society of devils in an essay Perpetual Peace might be regarded 
as merely a symptom.19 
As we have outlined difficulties emerging from a detailed consideration of 
Kant's political philosophy, we can now review some recent interpretations of 
the same issue, point out their weaknesses, and raise objections to them. 
One thinker who understood the Kantian outlook we have just considered, as 
an important turning point in the development of modern political philosophy 
was Foucault,20 who argued that Kant here suggests to the monarch a particular 
contract, according to which powerless reason should at last by the work of 
enlightened providence overcome and direct the arbitrary will of the authority, 
and maintained that Kant's description of the public use of reason is directly 
opposed to a previous conception of private freedom of consciousness. 
We have already shown that with the limitations that Kant builds into his 
proposal, he makes himself unable of performing his intended task. We have 
further shown that in fact these terms are not opposed, but that one developed 
from the other, and that there is no turning point here, although Kant may have 
seen one. And we have argued that the law must not be arbitrary, that even 
Kant opposed its being such, and that reason too must not be without power, 
ceding it completely. As such it would be useless for the intended purpose, as 
well as an illusion in itself. 
But one may discern further, more fundamental reasons for Foucault's insis-
tence on such an interpretation of Kant, revealing as much about him as about 
Kant himself. 
18. Habermas, op. cit., p. 49. 
19. I. Kant, Perpetual Peace, p. 126; KGS VIII, 366. Could devils be imagined in the role of 
philosophers? Burke, for example, was more inclined to think the contrary, for he regarded 
philosophes supporting and preparing the French revolution as devils, a danger to society as 
it is. 
20. Michel Foucault, »What is Enlightenment?« in Foucault Reader, London 1985. 
Social Contract and Public Opinion 67 
Foucault is obviously fascinated by Kant's concept of law, his understanding 
of law as a command, demanding absolute obedience. And as Joan Copjec has 
shown,2' this has deeper reasons in Foucault's philosophy. She presents a 
Lacanian critique of Foucault's understanding of law, for whom desire is 
identical with law, means obedience to the law, so that in his view being is 
obeying. Desire is supposed to be the accomplishment of law, which is in turn 
its necessary condition and its cause, so that they are in harmonious relation 
and law, of course, cannot repress desire. 
By contrast, psychoanalysis maintains that the law is based on the prohibition 
of (incestuous) desire. The subject constitutes himself as the one who rejects 
desire. Thus Freud in his Totem and Taboo22 shows that such views cannot 
explain either the existence of prohibition nor moral consciousness, that is 
interiorization of law. 
Such views therefore openly contradict the basic assumptions of Kant's practi-
cal philosophy, although this picture of an innocent individual is in turn 
exactly the mirror image of Kant's publicly reasoning philosopher. The latter, 
purified of immoral interests and desires and his passions tamed, serves him in 
the construction of the categorical imperative, connected with the belief that 
reason alone can motivate an individual to act. The categorical imperative in 
its purity is the sole source of good and everything beyond it is evil. Such 
enlightened rationalism was criticized by thinkers as early as Hobbes and 
Hume, who maintains that behind every action of an individual lies his desire, 
and Freud's fundamental argument was basically the same. 
The Lacanian perspective reveals that the categorical imperative itself, al-
though it should serve as a support for or even an expression of an individual's 
autonomy, destroys the illusion of his autonomy, for it excludes the individual's 
most personal and intimate characteristic, namely his desire, which is not 
translatable into the public sphere or public discourse. It is the erasure of the 
individual. Some problematic consequences of a such theory in a field of 
politics have already been pointed out; others of a moral nature appear, for 
example, in Kant's polemic with Constant. 
Psychoanalysis in its experience does not find any categorical imperative: 
what is more, its claim is that this position is untenable and therefore inacces-
sible; it cannot be achieved or sustained. Psychoanalysis discovers only the 
command of the Superego: Enjoy! This command maintains the irreducibility 
21. Joan Copjec, »TheOrthopsychic Sub ject: Film Theory and Reception of Lacan«, October 49, 
1989; Slovene trans. »Ortopsihicni subjekt: filmska teorija in sprejemanje Lacana«, in 
Hitchcock II., Analecta, Ljubljana 1991. 
22. Sigmund Freud, Totem and Taboo, in Pelican Freud Library, vol. XIII, Penguin, 
Harmondsworth 1985. 
68 Gorazd Korošec 
of desire and at the same time charges the individual with guilt for his desire, 
which is the basis of his subjection. 
In contrast to what is frequently asserted, Kant did not discover the function of 
the Superego, he merely revealed one of its dimensions with his unconditional 
demand for absolute obedience to positive as well as to moral law. Thus, he 
fails to consider possible conflicts between the two, and on the other hand he 
does not see that the categorical imperative is not a way of escaping from 
desire, that there is no such way, that the interiorization of law never succeeds 
entirely and that the individual has to face with his desire and recognize it. 
Kant only succeeded in an absolutization of the individual's subjection,23 and 
because he repressed desire, he would have to deal with the return of the 
repressed, appearing as the radical evil in the form of the categorical impera-
tive. 
If Kant's enlightened rationalistic theory tried to get rid of private interests, but 
could not offer a satisfying solution, the political theory of his time, for 
example in Adam Smith, had elaborated a more suitable answer as to how to 
deal with people's desires and private inclinations, that is by transforming 
them into (economic) interests and thus making them lawful and beneficial for 
society. So we can now move to a context where this process is understood as a 
precondition and which marks another stage in the development of the concept 
of public opinion. 
We will consider the view of one of the most important advocates of public 
opinion, namely Edmund Burke. Analysis of public opinion as one of the most 
important issues in political philosophy and practice plays a central role in his 
thought and with him the concept of public opinion attains its classical form. 
Writing about America, he observed: 
»In a free country every man thinks he has a concern in all public matters; that 
he has a right to form and to deliver an opinion on them. They sift, examine 
and discuss them. They are curious, eager, attentive and jealous; and by 
making such matters the daily subjects of their thoughts and discoveries, vast 
numbers contract a very tolerable knowledge of them, and some a very consid-
erable one... Whereas in other countries none but men whose office calls them 
to it having much care or thought about public affairs, and not daring to try the 
force of their opinions with one another, ability of this sort is extremely rare in 
any station of life. In free countries, there is often found more real public 
wisdom and sagacity in shops and manufactories than in the cabinets of 
23. It is worth noting that Adam Smith's notion of the neutral observer as a foundation of morality 
and judgement about public matters, which served Kant as a model in the construction of the 
categorical imperative, has no such absolutistic implications. 
Social Contract and Public Opinion 69 
princes in countries where none dares to have an opinion until he comes into 
them. Your whole importance therefore depends upon a constant, discreet use 
of your own reason.«24 
This opinion, already the result of private reasoning and reflections of private 
individuals on public affairs in public discussion, with the pretension of being 
publicly, commonly relevant, Burke names »general opinion«, but it was soon 
given the name public opinion by the Oxford Dictionary in 1781. We have 
seen that Kant behaves almost as if he does not notice this difference, which 
for Burke is self-evident, of how private opinions are involved into public one. 
Burke's eager and attentive discussants need not be Kantian scholars or phi-
losophers, and if they are jealous about the course of political events, they of 
course do not exclude their private opinions and interests from their consider-
ations. Indeed, they do not hesitate to express their disagreement with certain 
acts of government which run counter to this general opinion. Thus, Burke 
notes on another occasion: 
»1 must beg leave to observe that it is not only the individious branch of 
taxation that will be resisted, but that no other given part of legislative right 
can be exercised without regard to the general opinion of those who are to be 
governed. That general opinion is the vehicle and organ of legislative omnipo-
tence.«25 
The influence of public opinion upon the exercise of government is in Burke's 
case far more direct than in Kant's. Public opinion needs not subject itself to 
the demands of the government, it is the vehicle of legislative function, so that 
legislation should be performed according to the interests of public opinion. 
Private interests and opinions are of course involved in the general opinion and 
the public acts according to them, but Burke is convinced that people can 
distinguish the appropriate use of political power from its misuse, so that 
politicians who ignore public opinion and its interests surrounding a specific 
issue, and so lose the trust of the governed, are to be blamed for public 
resistance. There is no trace here of Kant's reasoning that people should do 
nothing but subject themselves to even unjust laws of the state. 
But of course public opinion is not Burke's only concern. He also involves 
himself in a polemic about social contract, evading, in contrast to Kant, its 
rationalistic foundations, and arguing in a famous fragment, which no inquiry 
into the development of social contract theory should overlook: 
»Society is indeed a contract. Subordinate contracts, for objects of mere 
24. Burke's Politics, ed. Hoffman and Levack, New York 1949, p. 119. 
25. Edmund Burke, »On the Affairs of America«, in Burke's Politics, p. 106. 
70 Gorazd Korošec 
occasional interest, may be dissolved at pleasure; but the state ought not to be 
considered as nothing better than a partnership agreement in a trade of pepper 
and coffee, calico or tobacco, or some other such low concern, to be taken up 
for a little temporary interest, and to be dissolved by the fancy of the parties. It 
is to be looked on with other reverence; because it is not a partnership in things 
subservient only to the gross animal existence of a temporary and perishable 
nature. It is a partnership in all science; a partnership in all art; a partnership in 
every virtue, and in all perfection. As the ends of such a partnership cannot be 
obtained in many generations, it becomes a partnership not only between those 
who are living, but between those who are living, those who are dead and those 
who are to be born.«25 
This fragment reveals a genuine conservative background and it is indeed to 
become one of the central elements in a conservative outlook. It is not a direct 
rejection of the theoretical frame of the social contract and at first sight it 
appears to be merely a shift of emphasis within it, but closer examination 
reveals a series of far more important differences. We shall therefore see in it 
not only the traditionalist component, although that is of course present, but 
point out with Pocock27 that Burke in his reinterpretation separates the very 
notion of social contract from its Roman law context, characteristic by its 
understanding of law as an order, an expression of will of the lawgiver, its 
creator, a context within which contract theory was placed at least from 
Hobbes on. This context serves Kant's purposes very well, because it fosters 
the view that it is enough, and at the same time the only appropriate and 
possible way of changing or improving the law, to persuade the sovereign 
monarch as a lawgiver with rational enlightened arguments, demanding at the 
same time absolute obedience to the law. 
But Burke replaces this context by placing the notion of social contract within 
the English common law tradition, the tradition of that insular English form of 
law, used and developed in king's courts and considered by the House of 
Commons in making their statutes, defined by Coke as immemorial and 
prescriptive law, that English Janus, as Pocock termed it, because it remains 
always the same and at the same time always changes and adapts itself to new 
circumstances, if legal experience approves them. This law has no lawgiver, its 
origin is beyond memory and it is the result of the accumulated legal reason of 
many generations, approved by legal experience. Burke also refers to the 
common law myth of the ancient constitution, the guarantee of English liber-
26. Edmund Burke, Reflections on the Revolution in France, ed. J.G.A. Pocock, Hackett 
Publishing Company, Indianapolis and Cambridge 1987, p. 84-5. 
27. J.G.A. Pocock, The Ancient Constitution and the Feudal Law. A Reissue with a Retrospect, 
Cambridge University Press, Cambridge 1987. 
Social Contract and Public Opinion 71 
ties and the constitutional role of parliament in legislative power, existing 
since ancient times, as an ideal necessary to preserve. In regard to this context, 
which was the cornerstone of Whig ideology, Hayek quotes Burke saying that 
laws are not made, but found.23 And within this ideology Hume could deny 
that moral rules could be based on reason. 
Considering conservative connotations of the common law frame, it is not hard 
for Burke to understand prejudices not as something opposed to reason, but as 
containing condensed wisdom of the past, a conception that, as muchas under-
standing of legal reason as custom in common law, openly contradicts the 
Kantian rationalistic attack on prejudices. For these reasons Lévi-Strauss 
could,29 like Tocqueville and Montesquieu before him, favour English liber-
ties, founded on a piece of irrationality, customs, unimportant differences and 
social codes, in contrast to French rationalistic liberties, based on abstract 
principles - the prejudices of rationalistic lawyers - in the name of which old 
historical liberties were abolished during the French revolution and which are 
regarded as an ideal also by Kant. 
Let us put aside for a moment the fact that Burke, like Kant, makes an 
enlightened appeal for the constant and discreet use of one's own reason, but 
does not reject the possibility of resistance, as Kant does, a fact that could also 
be explained in the context of their more fundamental differences. And the 
latter are also connected with the fact that they are defending two very 
different political orders. While Kant is writing in conditions and in favour of 
an absolute monarchy, Burke is defending the advantages of a limited monar-
chy, established by the Glorious Revolution but with a much longer tradition in 
British political thought and practice. Monarchy in Britain at that time was 
limited, because it indeed represents the most important part, but a part 
nevertheless, of the constitution of government, organized upon an ancient 
republican principle of mixed government, composed of elements of monar-
chy, aristocracy and democracy. Such a form of government was given the 
name of British, mixed or balanced constitution, because the authority of the 
crown was limited by the role that the two houses of parliament have in the 
legislative process, securing at the same time the balance in the shares of 
power of all three main constitutive parts of society. This balanced constitu-
tion was regarded as the main condition of the rule of law and only protection 
against the danger of despotism, tyranny, royal absolutism and any other 
misrule, all of them consequences of disrupted balance of power. 
Kant's principal republican egalitarianism, his dislike of aristocracy and rejec-
28. Hayek, op. cit., p. 458. 
29. Lévi-Strauss, Le regard éloigné, Libraire Pion, Paris 1983. Slov trans. Oddaljeni pogled, tr. 
Braco Rotar et al., Studia Humanitatis, Ljubljana 1983, p. 348 sq. 
72 Gorazd Korošec 
tion of political compromises mean that among other things he opposes the 
British constitution, which he regards as an illusion, based on false publicity 
and subject to corruption, not a real and free republican constitution. But this 
does not make him unable to approve the procedural rule of the British 
parliament, according to which the king presents his decisions to parliament 
indirectly, through a speech by one of his ministers, which allows for criticism 
of the minister's arguments, despite the fact that the authority of king is not to 
be questioned. Kant uses this rule as a foundation for the role of the faculty of 
arts in his parliament of faculties which, because he rejects the English politi-
cal legislative parliament, would be the only truly free arrangement. 
As weak as this objection is his denial of the limitation of British monarchy, 
which in his view remains absolute because of the king's right to make 
decisions about entering a war, where Kant overlooks that just in his time king 
or, in fact, his minister, under the pressure of public opinion must actually 
renounce such a decision. 
As we have seen, Burke and Kant hold rather different convictions about the 
possibility of resistance. And indeed, as Janet Hampton has observed, all 
theories of social contract must confront the question of resistance and of 
people's right to it,30 with regard to the extent of power they are inclined to 
confer on the sovereign. Kant regarded the right to resistance as self-contradic-
tory, because in the case of such a conflict of rights there should be constituted 
an opposite authority and a judge who should decide the rights of parties in 
conflict, which he regarded impossible and unacceptable. 
Burke, on the other hand, does not fear all possibility of resistance; he even 
approves of it if it is the result of misrule and a demand for a legitimate 
government. And it is the very balance of political power which he defended, 
together with a consideration of public opinion as the main condition of 
efficient government, that is for him the best guarantee of the prevention of 
resistance and at the same time the basis of legitimacy of government. The 
balance and division of power which Kant both rejected were precisely the 
basis of respectively the British and American constitutions. Political philoso-
phy after Kant would therefore have to return to them. 
The oddity of Kant's standpoint becomes even more evident if we compare his 
views with those of another leading proponent of public opinion and its 
influence on political life, Jeremy Bentham. Bentham strongly maintains that 
publicity should exist within as well as outside parliament, because precisely 
as such it can ensure the continuity of political reasoning and its function, 
30. Janet Hampton, Hobbes and the Social Contract Tradition, Cambridge University Press, 
Cambridge 1986, p. 256 sq. 
Social Contract and Public Opinion 73 
namely to enhance general felicity and to benefit the public good. Parliamen-
tary discussions constitute part of public opinion and must be available to the 
public, which needs them to keep itself informed. Arguments of statesmen 
would weaken the strength of common prejudices, so that reason and a spirit of 
investigation would spread throughout society. Thus the elector's choice of 
candidate for parliament would itself represent a judgement and conclusion 
about a given public and political matter. 
But parliament can also benefit from judgements of the public. In an elected 
and periodically renewed parliament publicity is even essential to give elected 
gentlemen the possibility of acting with an insight into the matter. Bentham 
thus regards public opinion and its criticism as the permanent and supreme 
control over the exercise of political power, which is subject to various 
temptations. The public constitutes the most important court which, even if it 
embodies conflicting opinions, is incorruptible, strives constantly to enlighten 
itself and unites in itself all the wisdom and justice of the people, constantly 
deciding the destinies of statesmen, while its penalties are unavoidable. 
Thus, the lively force of public opinion, although still highly imperfect, ob-
tains its influence against the dead statutes, »since public opinion, more 
enlightened, has had a greater ascendency.«31 
Publicity is therefore an absolutely indispensable guide of government and 
legislation, but it is of course not enough. Society should be ruled by law and 
all laws should be established through due legislative process in every political 
body with a share in legislative power, whereas the power of each should be 
limited and placed under control. In addition, all laws should pass the test of 
rationality and utility, while the art of legislation also requires skill and 
proficiency on the part of the legislator, that is familiarity with past and present 
laws and the purposes they serve. 
However, Bentham observes, there are certain political attitudes and views of 
law that lack reason. Thus, following Hobbes, he undertakes a linguistic 
analysis in the conviction that much political conflict and unrest is the result of 
conceptual confusion, false understanding and nonsense. He therefore rejects 
the concept of natural rights as rhetorical nonsense and opposes the view that 
government should originate from contract, maintaining that contracts come 
from government and not vice versa, because contracts derive from govern-
ment, which is chiefly indebted for enforcing them and maintaining the rule of 
law, their binding force.32 He also condemns the view that all laws constitute 
31. Jeremy Bentham, An Essay on Political Tactics, in The Works of Jeremy Bentham, vol. II, ed. 
J. Bowring, Edinburgh 1843, p. 33. 
32. J. Bentham, Anarchical Fallacies, in Works, vol. II, p. 502. 
74 Gorazd Korošec 
oppression, leading to a declaration of the right to rebellion. All these things 
are in his view plain fictions, fantasies of ignorant people, with no real 
meaning or physical referent. It is indeed true, as has recently been shown,33 
that Bentham later become aware of the inevitability of such fictions, for in 
legal theory the use of certain concepts as »contract«, which can only be 
characterized as rational fictions, is necessary and cannot be avoided. These 
fictions therefore do play a role in his theory, similar to the postulates and 
regulative ideas of reason in Kant's theory, but Bentham is nevertheless much 
more cautious in admitting their use and in considering possible consequences. 
Thus, he successfully avoids, for example, the equation of law and reason and 
the necessary connection of the former with obedience, which Kant supports. 
Thus, although Bentham is well known for his saying »Censor freely, but obey 
punctually«™ which in his opinion distinguishes between a rational censor of 
law, who may try to exercise his influence in order to legally change or annul a 
law that is in his view unacceptable, while in the meantime obeying it, or even 
resolutely try to oppose and prevent the establishment of a proposed law, and 
an anarchist, who rejects law as such, Bentham by no means demands absolute 
obedience to any law. 
Analyzing the French Declaration of Rights and Duties of the Man and the 
Citizen of 1795, Bentham laughs at the fact that after a long and fictitious 
speech of rights, the only thing that its author is able to say about duties is that 
a man's duty is to obey the laws which are, of course, based on reason. 
Bentham energetically rejects such a reductionist and ignorant view, maintain-
ing that»indiscriminate obedience is no more to be insisted on with regard to 
laws in any country, than, under a limited monarchy, passive obedience is with 
regard to kings.«35 While in a limited monarchy a demand for passive obedi-
ence prohibits only open rebellion against the supreme authority and is there-
fore in no way a wide restriction, it would be much more foolish to demand 
equally absolute obedience to any existent law in the country. 
Such an absolute demand would cause just everyday open transgressions of 
law by many thousands of citizens and the perfect constitution based on such a 
demand could result only in civil war and anarchy. 
Laws are of course necessarily imperfect and thus the law of England, which 
with all its faults is at least as near to perfection as any other, includes certain 
laws which, if generally obeyed, would destroy the country. Therefore it must 
33. Slavoj Žižek, »Zakaj Bentham?«, in Razpol 7, Ljubljana 1992. 
34. J. Bentham, A Comment on the Commentaries, ed. J.H. Burns and H.L.A. Hart, Athlone, 
London 1977, p. 399. 
35. J. Bentham, Anarchical Fallacies, p. 528. 
Social Contract and Public Opinion 75 
be left to each man's conscience to decide which laws to obey more and which 
to obey less or even try to evade. Bentham is able to say this because he knows 
that making laws requires skill, experience and observation and that law is to 
be regarded as custom, which it becomes if it is appropriate, and does not 
become if it is not. By contrast, Kant as a philosopher of the categorical 
imperative, does not trust the individual's moral ability and for fear of its abuse 
demands absolute obedience. 
If the Law of Libel were strictly obeyed, continues Bentham, there would be 
»no more liberty of discussion, publication or discourse on political subjects, 
in England, than there is on religious subjects in Spain«36 and all people would 
end up in jail. 
A distinction must therefore be made between disobedience, which is in 
England punished slightly, and rebellion, which deserves serious punishment. 
While in France it seems that they have lost the criterion and deny all differ-
ence between the two, in England, says Bentham, the best is achieved by 
constant infringement and inconsequent execution of laws. 
There is one more point to be noted here, namely that Kant's views have been 
interpreted within the Rousseauesque scheme of opposition between the state 
and civil society, where the state should not interfere in civil society and 
private sphere, for which some support can indeed be found in Kant's ap-
proach, in his distinction between obedience and freedom of mind. We never-
theless maintain that this interpretation lacks consistency. We have shown the 
illusory nature of this conception of Kant, and furthermore he turns such an 
interpretation upside down by placing obedience in the private sphere, where 
freedom should be allowed, and freedom in the public one. We should there-
fore agree with Ryan that it is not at all evident how Kant tries to sustain this 
split vision of human nature.37 Moreover, such an interpretation is exposed to 
another danger, that of veneration of man's natural goodness and understand-
ing of (civil) law as oppression, and hence of making excessive claims for 
liberty and of undermining the rule of law. To such intentions Bentham 
unequivocally answers: »The word men, as opposed to citizens, I had rather 
not have seen.«38 
Such views could only cause conceptual confusion; they are nonsensical. For 
him, there exists only one, rational man under the law which, restricting man's 
unlimited freedom, renders him capable of freedom under the law. 
Bentham also opposes Kant's principal egalitarianism, aimed primarily against 
36. Ibid. 
37. Ryan, op. cit., p. 76. 
38. J. Bentham, Anarchical Fallacies, p. 402. 
76 Gorazd Korošec 
the aristocracy, claiming that differences in rights are basic to the existence of 
society and its organization and that equal rights would destroy it. 
We could thus use Bentham's concluding thought to indicate a central diffi-
culty of Kant's theory: just as the French Declaration declared rights, which 
could however be limited by any law which revolutionaries proclaim, the same 
is true about Kant's political theory. In his theory of social contract as much as 
in his construction of the principle of publicity, Kant offers with one hand 
what he authorizes to be taken away with the other.39 
Therefore, Kant's political theory, as we have seen, lacks a demand for the 
limitation of authority. Yet his contemporary Benjamin Constant, whom the 
French revolution taught the importance of liberty and of limiting the 
government's power, offers a doctrine of guarantism, based on just such a 
demand. He develops a system of checks designed to protect the rights of the 
individual against the encroachment of the state. Constant, also an admirer of 
the British constitution, strongly opposes any absolute sovereignty, regardless 
of who might be chosen as sovereign, demanding a necessary limitation on 
sovereignty and all political power, which should be achieved through a 
division of power, representative government and the influence of public 
opinion, so that individual rights might be protected, as he says in Principles of 
Politics.*0 
Kant and Constant did, as we know, involve themselves in a polemic about the 
moral grounds for the possibility of human society, which shows that their 
views are indeed wide apart. In this polemic Constant asks if we are morally 
obliged to tell the truth even to a murderer who asks where his victim has fled, 
and so to collaborate in the murder of an innocent victim, and Kant even here 
defends the absolutistic view of obedience to a moral rule, regardless of its 
consequences, even if a guilt in a serious crime is among them.41 
Constant's contribution to political theory lies also in offering a definition of 
what he named »modern liberty«: 
»First ask yourselves, Gentlemen, what an Englishman, a Frenchman, and a 
citizen of the United States of America understand today by the word 'liberty'. 
For each of them it is the right to be subjected only to the laws, and to be 
neither arrested, detained, put to death or maltreated in any way by the 
arbitrary will of one or more individuals. It is the right of everyone to express 
39. Ibid., p. 534. 
40. Benjamin Constant, Principles of Politics, in Political Writings, ed. Biancamaria Fontana, 
Cambridge University Press, Cambridge 1988. 
41. Kant answers to Constant in his work On a Supposed Right to Lie from Altruistic Motives, in 
Critique of Practical Reason and Other Writings, tr. L.W. Beck, Garland, New York 1976. 
Social Contract and Public Opinion 77 
their opinion, choose a profession and practice it, to dispose of property, and 
even to abuse it; to come and go without permission, and without having to 
account for their motives or undertakings. It is everyone's right to associate 
with other individuals, either to discuss their interests, or to profess the 
religion which they and their associates prefer, or even simply to occupy their 
days or hours in a way which is most compatible with their inclinations or 
whims. Finally it is everyone's right to exercise some influence on the adminis-
tration of the government, either by electing all or particular officials, or 
through representations, petitions, demands to which the authorities are more 
or less compelled to pay heed.«42 
And he continues: »Individual liberty, I repeat, is the true modern liberty. 
Political liberty is its guarantee, consequently political liberty is indispens-
able.«43 
It is evident enough that individual liberty of this kind, understood at the same 
time as freedom from politics, as well as political liberty, have no place in 
Kant's theory. And if liberty is understood, as Constant defines it, as freedom 
from interference by the authority of the state in the private sphere, Kant's 
enlightened rationalistic political attitude appears plainly illiberal. 
And Isaiah Berlin has just such a definition of liberty as the absence of 
constraints in mind, when he emphasizes the difference between positive and 
negative liberty, referring to Constant as an advocate of the latter: 
»The most eloquent of all defenders of freedom and privacy, Benjamin Con-
stant, who had not forgotten the Jacobin dictatorship, declared that at very 
least the liberty of religion, opinion, expression, property, must be guaranteed 
against arbitrary invasion. ... But whatever the principle in terms of which the 
area of non-interference is to be drawn, whether it is that of natural law or 
natural rights, or of utility or the pronouncements of a categorical imperative, 
or the sanctity of the social contract, or any other concept with which men have 
sought to clarify and justify their convictions, liberty in this sense means 
liberty from; absence of interference beyond the shifting, but always recogniz-
able, frontier.«44 
Berlin uses this description to distinguish negative from positive liberty, char-
acterized as liberty to. The latter could be described in Kantian terms as 
consisting in being one's own master, that is free to do certain thing, and could 
become dangerous when that certain thing and a particular view of how to be 
42. B. Constant, The Liberty of the Ancients Compared with That of the Moderns, in Political 
Writings, p. 310-1. 
43. Ibid., p. 323. 
44. Isaiah Berlin, Four Essays on Liberty, Oxford University Press, Oxford 1969, p. 126. 
78 Gorazd Korošec 
one's own master are understood as the only acceptable and right course. This 
is the most appropriate ground for a variety of collectivist ideologies which 
would allow only one unique prescribed way of life. 
So Kant too overlooks that his universal and neutral principles and opinions, 
purified of private interests, according to which society should in his view be 
organized and laws shaped, are nevertheless certain particular principles, 
opinions and purposes. And although this scheme appears universal and the 
only one possible, it is just one among a variety of possible views on the 
matter. 
Kant's construction of the categorical imperative as a universal and empty 
form of moral law faces the same problem. In this construction, as in his 
articulation of the use of reason, Kant demands the absence of any pathologi-
cal elements and motives. The difficulty, however, is that they are irreducible. 
He thus overlooks the inherent performative dimension of the categorical 
imperative, which could also read: »1 act in such and such a way, because / 
want the maxim of my action to become the universal law.« The difference here 
is only a slight one, but its consequences are far-reaching, because in fact all 
actions, not just good, but bad and evil as well, could meet this formulation. 
Here the pathological element appears in the form of the categorical impera-
tive itself. This is why the form of the categorical imperative suits both pare 
good and radical evil acts. The Hegelian interpretation of crime, according to 
which crime is to be understood as an attempt to reinstate a maxim, underlying 
criminal act, as a new general law instead of the existing positive law, con-
firms this. And this is something that revolutionaries have always known. 
We will end our inquiry with a few concluding remarks. We know, as 
Schumpeter reminds us, that it was the Reformation which built a theory of 
royal absolutism against the political theories of scholastics. And if we con-
sider what Pocock somewhere notes, namely that absolutism can best be 
justified and defended with rational arguments, Kant's theory of enlightened 
absolutism appears in an entirely new light. So Clark observes that every 
political movement that attacks government, complaining about certain mis-
deeds perpetrated by it, if successful in overthrowing such a government and 
having an opportunity to establish a new one, demands for it even greater 
power than the previous one had, excusing this as a means of preventing 
similar misdeeds.45 Thus he reveals the inner logic of this process of strength-
ening the power of the authority, which could, besides Kant, be traced equally 
in Hobbes and in the American and French revolutions. 
Kant's philosophy has often been praised for founding morality and freedom in 
45. J.C.D. Clark, Revolution and Rebellion, Cambridge University Press, Cambridge 1986, p. 80. 
Social Contract and Public Opinion 79 
the categorical imperative. But if we recall Montesquieu's statement that: 
»Liberty does not mean that man does whatever he pleases, but that he could 
do what he ought to want and that he is by no means forced to do what he must 
not want«, Kant's assertions no longer appear so innovative. As a leading 
modern theorist of republicanism, Montesquieu describes an active and virtu-
ous citizen as a patriotic subject of the rule of law, loving the laws of his 
country and acting politically from this motive. As we have seen, Kant's 
troubles begin with the second half of Montesquieu's definition, with enforce-
ment of certain citizen's actions by the state. 
As Pocock remarks, there exists an important difference between theories of 
social contract and classical republican theory.46 While the former is centred 
on questions of sovereignty, law and rights, given to the people by the law of 
the sovereign, it cannot define the personality of the active citizen and the 
abilities that enable him to participate in the exercise of governing, on which 
republicanism concentrates. And while contract theory is preoccupied with the 
problem of resistance, the main problem for republican theory is what it calls 
corruption, that is the destroyed balance of government. 
Of course, we must bear in mind that Montesquieu takes the British balanced 
constitution as a model for his political theory and as an embodiment of the 
republican credo. So too Burke's theory, which interprets republican virtue as 
manners, supporting morals and representing a new form of virtue, is based 
upon this republican tradition. 
There are however two ways of participating in matters of government. While 
classical republicanism was centred upon participation in representative insti-
tutions of government, another view developed with Burke: that of public 
opinion as a means of exercising influence over government. Uniting in this 
way these two elements of modern republican political theory, he became able 
to offer arguments to both sides in the controversy over the Reform of parlia-
ment in 1832, when the possibility of opening parliament to a greater number 
of representatives of public opinion was discussed. 
Kant tries to unite two other political concepts, those of social contract and 
public opinion, which prove to be much harder to reconcile, because he 
overlooks the importance of the main condition for the efficiency of public 
opinion, that is the republican concept of participation through political repre-
sentation. He thus encounters serious difficulties and we have seen what 
strong obstacles he erects to public opinion. 
Indeed the concepts of social contract, demanding neutral and universal laws 
on one hand, and of public opinion as necessarily imperfect on the other, 
46. J.G.A. Pocock, Virtue, Commerce, and History, p. 44 sq. 
80 Gorazd Korošec 
therefore play two different roles in political theory, which could be compared 
with the Kantian notions of the ideal, or even noumenal, sphere on one hand, 
and the phenomenal sphere, on the other. At the same time this explains why 
these two concepts have different histories and have developed in large degree 
independently of one another. They could of course appear in the same theory, 
each serving as a supporting argument to the other, but they could just as well 
be opposed, in view of the fact that each could be given very different 
articulations. 
In his construction of public opinion, Kant did not admit particular interests, 
nor did his absolutistic attitude admit the existence of different branches of 
political power. In spite of certain misleading statements made by him, it 
remains the case that he demanded neither balance nor division of power.41 
But the development of political theory has followed another line, establishing 
division of powers as an inevitable principle of modern politics. Madison 
already saw that factions and particular private interests cannot be removed 
and that their effects can be cured not at the level of their causes, but at the 
level of their consequences, by opposing and balancing them. Thus, he main-
tains that »ambition should check ambition« and develops a system of checks 
and balances as the basis of constitutional law. And the rule that »nobody 
should be the judge in his own case« to which he refers also contradicts Kant's 
demand that the categorical imperative should be the basis of one's judgement 
of one's own actions. 
We know that socialism is the heir of enlightened absolutism and of a number 
of its supporting ideas. It is also based on the rationalistic outlook, restriction 
of private interests and public opinion, in so far as it contains elements of 
them, on wide-ranging restrictions on private freedom and civil liberty and a 
rejection of political representation, division of powers and control over them. 
Socialism represents a very narrow and restricted form of social contract, 
demanding absolute obedience and giving citizens only a heavily limited 
number of acceptable rights. Although it is true that socialism is far more 
strongly influenced by Rousseau, conceiving itself as the rule of a certain 
»general will«, Kant's influence upon it is not to be underestimated. 
Moreover, when the first socialist ideas entered the political stage, J.S. Mill 
was moved to observe that it was no longer a question of whether public 
opinion should be considered or allowed, for the reign of public opinion was 
already a fact, but of how to create the best possible public opinion. And he 
47. If we bear in mind that the division or separation of power, as distinct from the balance of 
power, is the achievement of the American Constitution. 
Social Contract and Public Opinion 81 
knew very well that Kantian philosophers could not offer a solution to this 
problem. 
The presence of heated debate about Kant's political philosophy under social-
ism, especially regarding the fact that its arguments can be used in favour of 
the socialist absolutistic regime as well as in order to criticize it, come as no 
surprise. But the position of critical authors, striving to preserve scholarly 
innocence and fearful of entering the dirty sphere of political compromise and 
responsibility, is quite inadequate for a successful criticism of socialism. And 
another question, also not without a connection with socialism, that Kant's 
political theory opens and leaves unsolved, is the problem of »decisionism«, 
which became widely discussed in regard to the work of Carl Schmitt. 
Social contract theory of course survives in modern liberal democratic politi-
cal systems too48: they are not democratic in the traditional sense because not 
all the people contribute decisions themselves, but instead have hired elected 
politicians for this purpose. The rule of law, including the limitation and 
control of government, are necessary conditions for such a system. And proce-
dures for the change and recall of a government no longer enjoying confi-
dence, which are built into constitutional systems, serve as the solution to the 
problem of the alienation of the rights of the governed, so that resistance 
becomes unnecessary, while public opinion has a very important role in 
exercising control over government and demanding of politicians that they 
take responsibility for their actions, if this is considered necessary. 
We will end with the claim that recognizing the theoretical and political 
context and consequences of Kant's theory, which we have attempted to 
outline here, might enable us also to give a more accurate evaluation of present 
political theory. Thus Rawls, as a Kantian contract theorist, cannot be seen as 
the author of the only appropriate current theoiy, but we must also acknowl-
edge all the relevance of Nozick as Lockean and Hayek as Humean Whig. The 
extent and inefficiency of bureaucracy, for example, is the problem which 
threatens the theory of the first and about which the latter two theorists have a 
lot to say. 
If one were to suggest that what is to be undertaken is a return to Kant, we 
should therefore be aware that this attempt in itself has no greater value than, 
for example, a return to Hobbes, Burke or Bentham. In each case knowing the 
past enables us to understand better our present. 
48. Janet Hampton, op. cit., p. 284.