A familiar puzzle sits at the heart of contemporary legal and political philosophy. On the one hand, rights are taken to exist prior to political institutions, originating in a primordial state of nature: Individuals possess claims over their bodies, property, and choices independently of any collective will. On the other hand, we are equally committed to the idea that legitimate law must be democratic—that it must, in some sense, be authored by those subject to it. The result is a persistent tension: How can rights be both prior to and yet dependent upon democratic law?
This tension acquires particular urgency in the current climate of strain on constitutional democracies. A familiar liberal diagnosis casts it as a dilemma: Either rights constrain democratic will, or democracy reshapes rights in its own image. Yet this dilemma arises only by clinging to a sharp divide between rights and democratic law—a divide that haunts mainstream liberal thought and fuels its recurring distrust of democracy as a potential gateway to populism. But what if this picture is mistaken? What if there is an alternative story—one that more faithfully preserves the liberal idea of freedom—by turning the standard view on its head and understanding rights and democracy as, to borrow a term from Habermas, equiprimordial?
The following reflections form part of a broader attempt to revisit this question through Kant’s political philosophy. In standard readings of the Doctrine of Right, rights—especially innate rights—are taken to be conceptually prior, while democracy enters only at the stage of institutional realization. What I want to explore instead is the possibility that Kant’s notion of external or juridical freedom already carries within it a democratic structure—one that is present even in what we ordinarily describe as the state of nature. The suggestion is not that all law is transparently democratic but that, on a certain interpretation of external freedom, whatever counts as law must already bear this democratic character. To put it in a slogan: Juridical rights either are democratic, or they are not rights at all.
The dominant understanding begins from external freedom as independence from the arbitrary will of others. This is typically understood in terms of control: first over one’s body (innate right) and then over external resources (acquired right). The role of law, and eventually of an omnilateral will, is to transform these unilateral claims into binding obligations on everyone. Democracy thus appears as a downstream mechanism, required to stabilize and realize an antecedent set of rights. This picture is attractive but unstable. If rights are fully specified at the individual level, then the move to a collective will appears as an external imposition. The “we” of law is constructed after the fact, rather than arising from the very relations that rights are meant to govern. The result is a familiar oscillation: either rights constrain democracy from the outside, or democracy reshapes rights in ways that risk arbitrariness.
It has been argued, compellingly, that this picture cannot be sustained, since even the most basic rights remain indeterminate in the state of nature and therefore require collective determination. This brings rights and democracy into closer alignment. Yet the account continues to privilege innate natural right by treating the equality inherent in it as the ground of democratic law-making. What entitles each person to participate as an equal in the collective determination of competing rights remains their possession of an individual innate right grounded in negative freedom. The difficulty is that a first-personal input at the pre-institutional stage of the state of nature does not readily yield a genuinely democratic form of legal normativity at the level of output. A lottery or some comparable mechanism securing a one-off equal input by everyone would plausibly satisfy the formal equality grounded in innate right, while still falling short of democratic law-giving.
What is at issue here are two distinct modalities for the generation of normative standards in Kant’s moral philosophy, each corresponding to a different aspect of freedom. The first is the modality of universalization, which governs the domain of virtue and addresses demands directed primarily to the self. It proceeds through a first-personal mode of law-giving in which the wills of others enter as considerations informing the agent’s deliberation. Duties of charity illustrate the point well: Although charity is relational insofar as it concerns other persons as its addressees, its normative ground remains a first-personal act of law-giving whereby I determine whether I can will my maxim as a universal law. Even where the standpoint of others is taken into account, the act of law-giving remains that of the individual agent, while the wills of others shape only the context and scope of that deliberation. Appreciating the distinctive demand for democratic law-giving that inheres in juridical or external freedom therefore requires distinguishing this first-personal structure from a different modality of norm-generation.
In moving from the demands of virtue, which ultimately address the self, to the demands of external freedom, Kant introduces a distinct mode of law-giving. The first-personal test of universalization gives way to a form of omnilateral (allseitig) law-giving in which the wills of others enter as constitutive elements in the grounding of normative standards. Kant assigns this mode of law-giving to a distinct class of moral demands oriented towards the consistency of the freedom of a plurality of persons, such that the standards governing their interaction must arise through collective law-giving. The familiar example of traffic lights illustrates the point well: Traffic lights render the crossing of pedestrians freedom-consistent because they are the product of collective law-giving and speak in the name of all those subject to them.
The difference from the first-personal structure of universalization concerns the grounds of the moral standard itself and is therefore metaphysical in character. In universalization, the wills of others function as considerations informing the agent’s evaluative standpoint. In omnilateral law-giving, they enter into the constitution of the standards of freedom themselves. Juridical demands accordingly arise within a relation in which others stand as co-authors of the norms that govern them.
Once this shift is taken seriously, a somewhat different picture of external freedom comes into view. External freedom presents itself, from the outset—even in the state of nature—as having a relational structure. Its central feature is a relation among a plurality of subjects who may be regarded as standing, in some sense, as co-authors, or co-legislators, of the norms governing their interaction. This way of putting matters sits well with a familiar, if sometimes underplayed, aspect of Kant’s practical philosophy: that all freedom is, in a fundamental sense, positive because it is generated by a law-giving principle rather than operating as a negative constraint on practical agency. In the external domain, lawgiving takes shape within a plurality whose members stand in relations of joint authorship. What emerges, then, is a distinct conception of external freedom whose defining feature lies in the collective character of this lawgiving activity.
This, in turn, invites a reappreciation of the role that Kant’s Universal Principle of Right (UPR) occupies within his political philosophy. Rather than functioning merely as an extension of the categorical imperative to the domain of external action, the UPR operates as the distinctive legislative principle of external freedom itself. Its requirement that “Any action is right if it can coexist with everyone’s freedom in accordance with a universal law” articulates more than a condition of coordination among plural actions. On this reading of the UPR, actions serve as enthymematic articulations of freedom, such that the underlying demand concerns the consistency among the freedoms of interacting persons. This requires standards generated through forms of collective law-giving in which each stands to the others as an equal co-author. Returning to traffic regulation one more time: Crossing the road in accordance with a co-authored standard, such as a traffic light, is crossing the road consistently with the freedom of each, or, in other words, as external freedom itself demands. Juridical rights, on this account, become elements of a shared normative order generated through relations of equal co-authorship. The relational structure of collective law-giving thus constitutes the ground of law itself.
This becomes clearer if attention is directed from isolated agents to patterns of interaction. External freedom concerns the conditions under which the freedoms of a plurality can coexist in a consistent manner. This involves the generation of norms through the interaction itself, structuring the terms under which such coexistence is realized. Even in relatively mundane cases—agents navigating shared space, for instance—the relevant norms emerge through processes of mutual adjustment. What is at stake is the consistency of the freedoms that underlie these patterns of interaction.
On this account, even relatively simple interactions can generate a form of “we-subject.” Wherever agents engage in interactions that fall under the demands of the UPR, they stand in relations governed by the requirement that the freedom of each be consistent with the freedom of all. Within this framework, the “we-subject” is generated through the relation itself: It arises wherever the requirement of consistency of freedoms calls for joint law-giving, thereby bringing those engaged in the interaction within a common legislative standpoint. Its unity derives from the relational structure of co-authorship, while its scope is determined dynamically by the range and density of the interaction in question, extending across those whose freedoms stand in need of consistency, from minimally paired agents to more complex pluralities. External freedom, in its positive sense, is thus determined through participation in this shared legislative standpoint. Crucially, this standpoint already exhibits the basic structure of co-authorship prior to the establishment of formal political institutions, in accordance with the constitutive role assigned to omnilateral lawgiving within the domain of right.
From here, a further thought suggests itself: If juridical norms arise from a relation of co-authorship among equals, their legitimacy depends on that relation being preserved, such that each can regard themself both as subject to the norm and as one of its authors. This requirement is internal to the very idea of independence. To be free from the arbitrary will of others is to stand in relations governed by norms that are the product of joint authorship by all. In this sense, the democratic character of law presents itself as a structural feature of external freedom itself—one that is already operative, in a minimal form, even in the state of nature.
These reflections also bear on how the state of nature is to be understood. It appears as a domain structured by a form of lawgiving, within which agents stand in relations of incipient co-authorship. Institutions and practices stabilize and extend these relations, but they do not create them ex nihilo. Their legitimacy depends on giving determinate form to a normativity already implicit in the relations of co-authorship among interacting free and equal agents.
Ironically, on the picture I have sketched, in populating the state of nature with democratic law, I at the same time negated it: If these reflections are even roughly on the right track, there is no space left for a genuinely pre-political state of nature, but only for a pre-institutional one. And this, in turn, is simply another way of saying that the domain of juridical—indeed democratic—normativity should not be conflated with, or reduced to, the domain of legal and political institutions.
George Pavlakos
George Pavlakos is Professor of Law and Philosophy at the University of Glasgow and currently holds a Leverhulme Trust Major Research Fellowship (2025–2028) for his project “Legal Obligation without Law.” The ideas presented here are developed further in “Democratic Law in the State of Nature: A Kantian Framework” (2026) and (with S. G. Khaledi) “The Metaphysics of External Freedom” (in preparation).
