Kant and the Problem of Unequal Enforcement of Law

Abstract

According to Kant’s assurance argument, I am not bound in the state of nature to restrain myself from violating your rights, for I cannot be confident that you will similarly restrain yourself when it comes to my rights. Our status as equals requires that, if I am to be bound to respect your rights, I must have assurance that you will similarly respect mine, and this assurance is something that can only be provided by some entity whose coercive power over us is not only clearly dominant over us both but also directed at us equally. I argue that Kant’s assurance argument provides the basis for an important challenge to the American legal system’s claim to legitimate authority. This is, in one sense, a surprising result, since Kant is infamous for holding a particularly undemanding conception of legitimacy. I use the example of wage and hour laws: though the law define a worker’s wage rights, the legal system fails to enforce them against employers, thus leaving the worker without the assurance of the security of her rights that, on Kant’s assurance argument, she is entitled as a free and equal citizen.