Kant and the Theory and Practice of International Right

By Georg Cavallar

This book argues that Kant’s theory of international relations should be interpreted as an attempt to apply the principles of reason to history in general, and in particular to political conditions of the late eighteenth century. It demonstrates how Kant attempts to mediate between a priori theory and practice, and how this works in the field of international law and international relations. Kant appreciates how the precepts of theory have to be tested against the facts, before the theory is enriched to deal with the complexities of their application. In the central chapters of this book, the starting points are apparent contradictions in Kant’s writings; assuming that Kant is a systematic and profound thinker, Cavallar seeks to use these contradictions to discover Kant’s ‘deep structure’, a dynamic and evolutionary theory that tries to anticipate a world where the idea of international justice might be more fully realized.

• Language: English
• Publisher: University of Wales Press
• Release date: Mar 1, 2020
• ISBN: 9781786835543

Georg Cavallar

Dr. Georg Cavallar is a teacher and a lecturer at the departments of philosophy and educational science, University of Vienna. He has published on Kant's political philosophy, the history of international law, and educational philosophy.

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POLITICAL PHILOSOPHY NOW

Chief Editor of the Series:

Howard Williams, Aberystwyth University, Wales

Associate Editors:

Wolfgang Kersting, University of Kiel, Germany

Renato Cristi, Wilfrid Laurier University, Waterloo, Canada

Susan Meld Shell, Boston College, Massachusetts, USA

David Boucher, Cardiff University, Wales

Affiliate Editors:

Peter Nicholson, University of York, England

Steven B. Smith, Yale University, USA

Political Philosophy Now is a series which deals with authors, topics and periods in political philosophy from the perspective of their relevance to current debates. The series presents a spread of subjects and points of view from various traditions which include European and New World debates in political philosophy.

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POLITICAL PHILOSOPHY NOW

Kant and the Theory and Practice of International Right

Georg Cavallar

Second, revised and enlarged edition

© Georg Cavallar, 2020

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Cover image: Immanuel Kant, 19th century steel engraving. The Granger Collection/Alamy

Contents

Preface

Acknowledgements

Introduction: Mediating Between Pure Reason and Practice

1The Contemporary Context: Kant’s Judgement on Frederick’s Enlightened Absolutism

2Kantian International Right: Background and Paradigm Shift

3Judging War

4Does Republicanism Promote Peace?

5Non-intervention, Humanitarian Intervention and Failed States

6Conflicts in Kant’s Account of the Right to Go to War

7The Unjust Enemy

8Kant’s Society of Nations: Free Federation or World Republic?

9Moving Beyond Nationalism: Constitutional Patriotism and Cosmopolitan Enthusiasm in Kant’s Philosophy

Conclusion: A Theory for our Times

Notes

Bibliography

Preface

The first edition of this book was published in 1999, when I lived in the United States for the second time. It grew out of a protracted preoccupation with what might be called ‘Kant’s international relations thinking’. I am indebted to Sharon Anderson-Gold, Herta Nagl-Docekal, Volker Gerhardt, John Christian Laursen, Gerhard Luf, Hans-Dieter Klein, Ingeborg Maus, August Reinisch, Alexander Somek, Howard Williams and many others who have helped me to come to terms with Kant’s complex philosophy. Back then, work on this book was made possible by two generous scholarships financed by the Fonds zur Förderung der wissenschaftlichen Forschung, Vienna. I finished this book when I was visiting scholar at the Department of Political Science, University of California, Riverside. After having received all this assistance, anything I have still managed to get wrong is my sole responsibility. I want to thank Sarah Lewis at UWP, and again Howard Williams for helping me to get this second edition published. The book is dedicated to my wife Angelika and our three thriving children, who still cannot understand why on earth people write books and do not get a lot of money for them.

All references to Kant’s works are in accordance with the Akademie-Edition, vol. 1–29 of Kant’s Gesammelte Schriften, Berlin/Leipzig, 1902–. This edition is referred to by Roman (volume) and Arabic (subvolume, pages and lines) numbers. Thus, XXVII, 2, 1, 673, 38–674, 2 refers to volume 27, subvolume 2, 1, page 673, line 38 to page 674, line 2. The English translations are from Hans Reiss (ed.), Kant, Political Writings (Cambridge: Cambridge University Press, 1991). For the parts not covered by Reiss’s edition, I use the Cambridge Edition of the Works of Immanuel Kant (New York: Cambridge University Press, 1992–). References to the Critique of Pure Reason follow the customary pagination of the first (A) and second (B) edition.

Vienna and St Gilgen

Summer 2019

Acknowledgements

Acknowledgement is due for the following: A different version of ‘Kant’s Judgement on Frederick’s enlightened absolutism’ was first published in History of Political Thought, 14 (1993), 103–32. chapter 3 was first published in German as ‘Kants Urteilen über den Krieg’, in Hoke Robinson (ed.), Proceedings of the Eighth International Kant Congress, Memphis 1995 (Milwaukee, Marquette University Press, 1995), vol. 2/1, 81–90. Parts of chapter 4 are taken from Theories of Dynamic Cosmopolitanism in Modern European History (Oxford: Peter Lang, 2017), pp. 116–24 and pp. 137–48. Parts of that text were first printed in ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’, Review of International Studies, 27 (2001), 229–48; reprint: Arthur Ripstein (ed.), Immanuel Kant (Hants: Ashgate, 2008), pp. 535–54. ‘Kant, intervention, and the failed state’ appeared in Kantian Review, 2 (December 1998), 99–106. ‘Conflicts in Kant’s account of the right to go to war’ was first published in The European Legacy: Toward New Paradigms, 2 (1997), 991–9, and ‘Kant’s society of nations: free federation or world republic?’ in Journal of the History of Philosophy, 32 (1994), 461–82. The section ‘On the use and abuse of Kant in international relations theory: a critique of Susan Meld Shell’ at the end of chapter 7 was originally published as ‘Commentary on Susan Meld Shell, Kant on Just War and ‘Unjust Enemies’: Reflections on a ‘Pleonasm’", Kantian Review, 11 (2006), 117–24. Chapter 9 was published under the title ‘Jürgen Habermas and Manfred Riedel: Moving beyond Nationalism’, in Howard Williams, Colin Wight, and Norbert Kapferer (eds), Political Thought and German Reunification (Houndmills: Macmillan Press, 2000), pp. 177–93. I am grateful to all publishers for their generous permission to reprint the texts.

Introduction: Mediating Between Pure Reason and Practice

Virtue itself turns vice being misapplied.

Shakespeare, Romeo and Juliet

This book argues that Kant’s so-called theory of international relations can and should be read as Kant’s attempt to apply the a priori principles of reason to a particular, historical situation, especially to the political conditions of the late eighteenth century. Conservative philosophers like Friedrich von Gentz (1764–1832) and August Wilhelm Rehberg (1757–1836) had criticized Kantian political philosophy for its alleged idealism and impracticability in the 1790s. Gentz turned away from Kant after he had translated Burke’s Reflections on the Revolution in France into German. He thought that Kant’s a priori doctrine of human rights was just preliminary work. If anyone wanted to realize this theory, the means to do so had to be studied as well. A ‘new theory based on experience’ should study human beings, their passions and talents, social conditions and history in order to find out which constitution was the best for a certain people. For Gentz, Kant’s theory was insufficient and incomplete.¹ Rehberg thought that Kant’s doctrine could not be applied in reality as it presupposed morally and rationally perfect beings. The categorical imperative was so formal that it could not specify the content of particular duties. Kant’s principles were too generic and too idealistic to be applied in the real world.²

Kant was familiar with this explicit criticism of his theory, and developed his political philosophy in his later writings as a link between the pure doctrine of right and the real world. According to Kant, experience is systematically subordinated to the ‘precepts of theory’. However, experience has an important function as it helps us to learn how ‘theory could be better and more generally put to work, after one has adopted it into one’s principles’ (VIII, 289, 1–4). Some interpreters have become aware of this major aspect in Kant’s thinking, among them Wolfgang Kersting, Reinhard Brandt, Ingeborg Maus, Volker Gerhardt, Arthur Ripstein, Reidar Maliks, Francis Cheneval, Elisabeth Ellis, Pauline Kleingeld, Howard Williams, Sharon Byrd and Joachim Hruschka.³ Back in 1962, Jürgen Habermas argued that Kant’s principle of publicity is an attempt to link the intelligible with the empirical. ‘[R]eason in its historical process of becoming actual required a union of empirical consciousness as a corollary to the intelligible unity of consciousness as such (intelligiblen Einheit des transzendentalen Bewußitseins)’.⁴ Citizens create with their rational discourse (based on publicity) a unity beyond the sphere of transcendental consciousness. Kant asserted a harmony between right and the ends of the public with his affirmative principle of public right. If maxims, he claimed, ‘can attain their end only through publicity, they must conform to the universal end of the public (happiness), and to be in accord with this (to make the public satisfied with its condition) is the proper task of politics’ (VIII, 386). This intended harmony seems strange because it is usually assumed that the wide gap in Kant’s philosophy between the sphere of transcendental right and the world of happiness and the needs of real people cannot be bridged. Many interpreters tend to reject passages as inconsistent or contradictory that do not fit into this picture of Kant’s philosophy. In this book, I argue for a profound revision of this very picture.

Apart from the principle of publicity, Kant’s attempt to mediate between pure reason and practice has two cornerstones: his concept of ‘permissive rights’ and that of popular sovereignty. Reinhard Brandt argues that Kant’s permissive rights are central for his legal theory.⁵ In Perpetual Peace, Kant distinguishes between leges strictae and leges latae (VIII, 347). The strict rights have to be applied at once; the other ones ‘allow some subjective latitude according to the circumstances in which they are applied’ (VIII, 347). They do not have to be executed at once. What is surprising here is that Kant accepts how contingent elements like circumstances can and should be taken into consideration. In addition, Kant allows for a ‘subjective’ element. What does Kant mean by this? Apparently, it refers to the judgement of the person who applies the objective principle of right (Rechtsgesetz).⁶ Existing states, positive law and institutions are provisional in character. They are an imperfect realization of the pure concept of right, and the ideal of a social contract. There are two consequences. First, existing possessions, for example, should be accepted, even though they do not ‘have what is required in order to be called a right’ (VIII, 347, 31). However, this acceptance is logically subordinated to the juridical duty to reform existing possessions so that they gradually approach the a priori ideal. This is the ultimate purpose that must not be neglected, or lost sight of. The ruler is ‘permitted only to delay doing so, lest implementing the law prematurely counteracts its very purpose’ (VIII, 347). Premature action might be counter-productive; here Kant agrees with conservatives like Gentz. However, pragmatic considerations – paying attention to circumstances, historical factors and human beings – are subordinated to the categorical principle of right. Here, Kant sides with the ‘revolutionaries’. With the help of the permissive rights, the principle of right can be applied to reality ‘by way of a gradual reform’.⁷ The permissive rights have the systematic function of bridging the gap between ideal and reality. The evolution of rational right is the ultimate goal, but politicians are entitled to continue existing unjust conditions provisionally until favourable conditions allow for changes.

It is useful to distinguish latitude (latitudo or Spielraum, cf. VI, 390, 6–7) in the juridical/political sphere from that of ethics. If ethics does not offer laws for actions, but laws for the maxims of actions (VI, 388, 32–3), then there is a latitude for the free will (Willkür) when and how to realize the moral law. Kant offers an example. He argues that the duty to promote the happiness of others may be restricted by the duty to help, assist and love one’s parents (VI, 390, 7–14). Again, reason cannot solve this problem on its own. Our faculty of judgement is required to find the proper way to implement the duty towards others. Kant admits that these judgements may be mistaken (VI, 433, 23–30). The difference between the juridical and the moral sphere (moral in the strict sense of ethics) is that, in legal matters, the latitude pertains to actions (e.g. disarmament), whereas in the moral sphere it refers to maxims. The translation of the maxim into actions allows for some latitude.

Kant’s new theory of politics is the theory of how to apply principles a priori. Kant’s theory of politics is a ‘doctrine of right put into practice’ (‘ausübende Rechtslehre’; VIII, 370, 11). Against Benjamin Constant, Kant asserts that no middle principle should be inserted between the principle of reason and its application.⁸ Politics may contain elements ‘drawn from experiential cognition of human beings’. In addition, pragmatic considerations are legitimate; politicians may ponder how to arrange the ‘mechanism for administering right’ (VIII, 429). The legal philosopher (who sets up principles) admits that the politician (who judges and applies) rules over a distinct domain. The legal philosophers, if they restrict themselves to their proper field, cannot know anything a priori about proper timing, historical circumstances or favourable conditions.⁹ As a legal philosopher, Kant claims that the principle of right should come first. All hypothetical maxims of politics are restricted by the categorical imperative of right. ‘Right must never be accommodated to politics, but politics must always be accommodated to right’ (VIII, 429).

Kant’s political thinking is evolutionary. Claudia Langer argues that some interpreters understood his political theory as a defence of the German Obrigkeitsstaat, the authoritarian (Prussian) state, only because they have overlooked that he favoured a reform according to rational principles.¹⁰ Peter Unruh claims that the respublica phaenomenon, the factual republic, is the scheme of the respublica noumenon within the framework of Kantian evolutionary politics. The Prussian monarchy is tolerated provisionally, for the time being. An absolute and peremptory condition of right is achieved by the rule of law ‘and depends on no particular person’ in a representative republic (VI, 341).¹¹ Ingeborg Maus has emphasized the other cornerstone of Kant’s theory. According to Maus, Kant’s concept of popular sovereignty is procedural. The supreme legislative power has its legitimate origin in the united will of the people (VI, 313–14). The true republic is a representative democracy where popular sovereignty is restricted to legislation.¹² In pre-republican, and thus pre-democratic, provisional states of affairs, the ruler has to resort to hypothetical universalization which is ‘in conformity with the spirit of a representative system’ (VIII, 352, 31). The ultimate goal is factual universalization in the law-making process. Maus sees a ‘Copernican turn’ towards ‘procedural natural right’ in Kant’s legal philosophy.¹³

This book tries to show how Kant’s attempt to mediate between a priori theory and practice works in the field of international law and relations. The above-mentioned authors focus on Kant’s state right and domestic affairs, and one might think that international relations are a different matter. However, Kant’s ‘application theory’ extends to international right as well. One striking example is given by the preliminary articles in Perpetual Peace, where Kant introduces permissive rights. Another example is a footnote in The Conflict of the Faculties (1798), where Kant argues that a monarchy like Prussia is entitled to keep its constitution in order to ‘maintain itself among powerful neighbors’ (VII, 86 footnote; see also chapter 1). A closer look at these aspects of Kantian international relations theory is the task of this book.

Some remarks on Kant’s system are necessary to avoid misunderstanding and confusion. What I have just referred to as Kantian international relations theory consists of two parts. On an empirical level, Kant analyses international relations. For example, Kant claims that ‘establishing a perfect civil constitution’ is dependent on foreign relations. The state of nature in international affairs has to be overcome if domestic justice is to be attained (VIII, 24). Kant also observes an interesting link between domestic and international affairs in eighteenth-century European states. He perceives that ‘civil freedom cannot very well be infringed without feeling the disadvantage of it in all trades, especially in commerce’. This in turn might reduce the power of the respective state ‘in its external relationships’ (VIII, 27–8).

On a normative level, Kant sets up legal a priori principles, which are not based on experience, custom, tradition, the common good or interests and so forth, but on what Kant calls practical reason and the innate right to external freedom. This reason provides a universal criterion which helps us to distinguish between what is right and what unjust. ‘Right is […] the sum of the conditions under which the choice of one (Willkür) can be united with the choice of another in accordance with a universal law of freedom’ (VI, 230, 24–6). This implies that rights are reciprocal; that human beings as persons are bearers of rights; that rules should govern the interrelations of persons.¹⁴ An example of a normative claim by Kant is that states have a legal duty (Rechtspflicht) to leave the state of nature and enter a civil condition (Rechtszustand). This duty cannot be deduced from the status quo or its observation. It is contained in the proposition that persons are entitled to the use of their external freedom. If – and this is Kant’s minimalist empirical assumption – humans cannot avoid having physical contact with each other (after all, the world is limited in space), then a civil condition must be instituted that secures their mutual rights and spheres of external freedom. Pure reason can tell us that much. It does not tell us precisely how this civil condition should look at the international level. This causes Kant a lot of trouble, as we shall see in the chapter on the federation of states. Kant’s or my own conclusions cannot claim to be based on pure a priori considerations (these are limited to the above-mentioned legal duty itself). Our conclusions, our attempts to specify this civil condition in detail, may be reasonable, but might not be rational in a strict sense.

I have outlined above how Kant’s application theory is the missing link between these principles and reality. Traditionally, Kant interpreters have assumed that this missing link was Kant’s philosophy of history. This is certainly not wrong, and my third chapter argues that the philosophy of history indeed tries to bridge the gap between ideal and reality. However, there is a systematic difference between applying principles for human beings who act (in politics, for instance), and the moral hope that reality, world politics or ‘nature’ will eventually also move towards a state of affairs where these principles rule.

This book is called Kant and the Theory and Practice of International Right. For Kant, the critique of reason investigates the sources and limits of our knowledge, and is an introduction (Propädeutik) to the system itself (III, 43, 10–12). The doctrine or ‘demonstrated theory’ builds upon the critique. The doctrine is the system based on a priori principles (analysed in the critique; IX, 14–15). Nowadays, Kant’s practical philosophy (including his political philosophy) is as highly regarded as his theoretical philosophy. This is an important development, since the more constructive side of Kant’s philosophy is to be found in his moral and political works. The main task of the Critique of Pure Reason is to clarify its concepts and to get rid of basic errors, and is thus predominantly ‘negative’ (III, 43). The moral and political writings, on the other hand, try to expand the scope of reason ‘for practical purposes’ (‘in praktischer Absicht’; V, 134–41; VIII, 18–19). Establishing principles of moral and political conduct is not negative, but constructive. Thus Kant’s normative theory of international relations, or his philosophy of international right, is part of what he calls ‘doctrine’. My argument is that Kant goes beyond his understanding of ‘critique’ and ‘doctrine’ as developed in the first Critique in his political and legal writings of the 1790s, by adding an additional element: the attempt to mediate between the doctrine and its application in practice.

Many interpreters have written about Kant and his ‘philosophy of peace’; most of their publications are essays. Interpretations by international lawyers are very rare. This book focuses exclusively on Kantian international relations theory; it does not treat it as a mere appendix to state right. I think this is one of the first full-length analyses of its kind in English. It faces many challenges. One of them is mentioned by Kant in his preface to The Metaphysics of Morals (1797). Kant admits that he has treated ‘some sections’ towards the end of the book less intensively than previous ones, above all because he thinks that these later sections can easily be deduced from the previous ones (VI, 209, 8–11). These later sections are those devoted to international and cosmopolitan right. The task of concluding from previous sections is certainly not an easy one. We can see this when Kant writes about analogies. For instance, Kant claims that states or peoples (Staatsvölker) can be dealt with like individuals in a legal theory (VIII, 349, 16–17 and 354, 3–5). In another passage, Kant denies this domestic analogy or parallel (VIII, 355, 33–356, 1). We will discuss this in greater detail in Chapter 8.

In the central chapters of this book (chapters 3, 6, 7, 8), my starting points are apparent contradictions in Kant’s writings. Kant sees antinomies in metaphysics as a challenge to revise our theories and conceptions. I was not satisfied with the simple conclusion that Kant is ‘contradictory’, ‘inconsistent’ or simply senile. Assuming that Kant is a systematic and profound thinker, I have tried to use these contradictions to discover Kant’s ‘deep structure’.

Chapter 1, ‘The Contemporary Context: Kant’s Judgement on Erederick’s Enlightened Absolutism’, argues that my overall thesis – that Kant’s political philosophy should be read as an attempt to mediate between theory and practice, between norms and the status quo – also works on the domestic level. There is a parallel between Kant’s treatment of Frederick’s rule and the way in which Kant deals with the idea of a federation of states, for instance. Both are seen as transitory but necessary stages in the historical development towards the ideal of reason. Kant interprets his own state, Prussia, as non-republican, but as capable and in the process of evolving towards republicanism. This section is historical, and argues that Kant was not far from what we may call historical truth. Kant was no idealist in the traditional sense, and he never lost contact with the real world.

The second chapter, ‘Kantian International Right: Background and Paradigm Shift’, offers an outline of eighteenth-century international relations and law, the theories of international lawyers and legal philosophers, and peace projects. Apart from Hobbes, three people are important for Kant: Saint-Pierre, Rousseau and Vattel. The outline serves as a background for Kant’s paradigm shift in international relations theory that takes place in three areas. First, Kant’s doctrine moves from the traditional focus on the right of war to the right directed towards peace. Secondly, Kant reinterprets the concept of state sovereignty as popular sovereignty. Finally, Kant undermines classical international law as almost exclusively centred on states with cosmopolitan right.

Chapter 3 (‘Judging War’) argues that Kant tries to bridge the gap between the imperative of practical reason (‘there shall be no war’) on the one hand and the realities of war and bloodshed on the other. Kant employs the faculty of reflective judgement, which declares that wars serve an indispensable positive function in the development of humankind. Thus Kant arrives at two mutually exclusive perspectives on war, one based on practical reason, the other one on reflective judgement. The philosophy of history tries to interpret history tentatively as a gradual approach or advance towards the ideals of reason.

Chapter 4 (‘Does Republicanism Promote Peace?’) shows that Kant argues on three different levels that the republican constitution might favour peace. The third level is probably the most interesting one. Following Rousseau, Kant maintains that in a true republic, the normative general will (volonté générale) prevails. If the general will is oriented towards the (benefit of the) political community, which is peace rather than war, then the general will coincides with peace. The more a political community reforms itself and moves towards a full realization of the general will and thus republicanism, the more peaceful it becomes. The final sections of the chapter argue that Kant developed what I call ‘dynamic republican cosmopolitanism’. It goes beyond the so-called democratic peace proposition endorsed by authors such as Michael Doyle, and claims that Kant envisioned a republic where the citizens cultivated their moral dispositions, their way of thinking and their cognitive capacities. The enlarged way of thinking of an enlightened public would accept that respecting international law, even if less than perfect, should not be contingent upon compliance of other states, that republics have a duty to reform themselves, but must never coerce others to do the same, and so on. In short, these republican citizens would arrive at conclusions very different from what many proponents of the democratic peace proposition suggest.

Chapter 5 (‘Non-intervention, Humanitarian Intervention and Failed States’) focuses on a controversial issue of today’s discourse in international theory and law. It raises the question whether Kant’s strict principle of non-intervention can be applied in practice, and guide politics. Can we ‘translate’ the duty of non-intervention 100 per cent into certain situations? Kant’s a priori principles of right should be regarded as formal and abstract, but not as empty. Consequently, they allow for some latitude in their application. I will argue that the principle of non-intervention is relative in the sense that it must be seen in relation to and within the context of the juridical quality of the international arena, as well as in relation to the juridical quality of a certain state.

Chapter 6 (‘Conflicts in Kant’s Account of the Right to Go to War’) attempts to explain why Kant’s philosophy of peace leaves room for a right to go to war. Kant points out that in a state of nature, states are entitled to go to war, but only if certain conditions are met. In addition, this entitlement is only provisional, and must be abandoned as soon as the international community leaves the state of nature or anarchy. Again, Kant tries to mediate between the demands of reason and those of politics based on experience. An unconditional veto against any right to go to war (including the UN Charter’s right of self-defence) would be utopian and counter-productive. Some states would fall prey to aggressive and powerful ones, even further destabilizing the precarious balance among states. On the other hand, this very state of nature should be abandoned. Kant tries to solve this dilemma with a short-term entitlement to go to war and a long-term duty to enter a lawful condition or a juridical state. In terms of Kantian thinking on the right to go to war, I contrast passages in the Metaphysics of Morals with conflicting ones in Perpetual Peace.

Chapter 7 (‘The Unjust Enemy’) addresses another tension in Kant’s theory. On the one hand, Kant claims that it does not make sense to talk of an unjust enemy in the state of nature, as this state itself is one of injustice and lawlessness. On the other hand, Kant asserts that the concept of the unjust enemy must be part and parcel of any genuine theory of international right. This is possible because Kant implicitly posits a transitory state in international relations, a semi-juridical state in between the state of nature and the juridical state. Again, this semi-juridical state links pure theory with the realities of eighteenth-century international relations.

Chapter 8 (‘Kant’s Society of Nations: Free Federation or World Republic?’) deals with one of the favourites of Kant interpreters. I argue