Immanuel Kant on international law

By Amanda Perreau-Saussine[1]

 

Forthcoming in John Tasioulas and Samantha Besson eds. The philosophy of international law (OUP 2008)

 

Introduction

In 1754, Jean Jacques Rousseau arranged with the Saint-Pierre family to edit the Abbé de Saint Pierre’s works, focussing on his proposal for the creation of a Europe-wide federal government designed to respect both sovereignty and individuals’ basic rights[2].  Rousseau did indeed publish extracts from Saint-Pierre’s works, including the details of this scheme for a perpetual European alliance in which states would make financial contributions to a congress for the resolution of disputes, a congress with a president, legislative powers, a “coercive force” to compel obedience to the federation’s laws and a prohibition on any state’s withdrawal from the federation.[3] 

Key to his proposal, Saint-Pierre argued, was a hard-headed understanding of human nature.  He assumed human beings to be “as they are, unjust, grasping and setting their own interest above all things”: if the project remained unrealised, “that is not because it is utopian; it is because men are crazy, and because to be sane in a world of madmen is in itself a kind of madness.”[4]  But Rousseau concluded that Saint-Pierre underestimated the insanity of the world.  For the scheme to be put into action:

it would be essential that all the private interests concerned, taken together, should not be stronger than the general interest, and that everyone should believe himself to see in the good of all the highest good to which he can aspire for himself.  But this requires a concurrence of wisdom in so many heads, a fortuitous concourse of so many interests, such as chance can hardly be expected ever to bring about.  But, in default of such spontaneous agreement, the one thing left is force; and then the question is no longer to persuade but to compel, not to write books but to raise armies.[5]

Faced with the barbarities of warfare, optimistic writings of philosophers came to seem themselves obscene in their detachment from reality: “Barbarous philosopher! Come and read us your book on the field of battle!”[6]

Immanuel Kant’s “Toward Perpetual Peace”, structured like Saint-Pierre’s essay as if itself a peace treaty, aims to show how writing books really could challenge a Prince’s confidence in his own wisdom, and as such help to transform a perpetual state of war into one of perpetual peace.  Following both Rousseau and Saint-Pierre, Kant treats international insecurity and competition as the self-perpetuating results of bad counsel, the advice of “political moralists” or “moralising politicians” who pretend that “human nature is not capable of good” and whose advice can lead ultimately only to annihilation, the peace of the graveyard (8:378,373,357). 

For Kant, the understanding of human nature that any good counsellor (“moral politician”) requires must be based on an understanding of what human beings can become; this in turn requires knowledge of what humans ought to do, a “metaphysics of morals”.  Students of human nature (whom Kant calls moral anthropologists) require universal, a priori moral principles to serve as “guides to judgment” and “for the discipline of the mind in its obedience to duty, whose precept must absolutely be given only a priori by pure reason.”  In denying to reason a guiding role prior to observation of the bleak side of human nature, realists make “improvement impossible and perpetuate, as far as they can, violations of right” (8:373).[7]   Worse still, they risk engendering the truth of their own position:

a pernicious theory of this kind may perhaps even bring about the evil that it prophesies.  For, in accordance with such reasoning, man is thrown into a class with all other living machines which only require the consciousness that they are not free creatures to make them in their own judgment the most miserable of all beings. (8:378) 

Kant argues that a correct understanding of human nature requires a metaphysics of morals, a reflective, reasoned understanding of moral judgment and the moral principles on which such judgment is based.  And at the core of this metaphysics of morals lies a recognition of human freedom: freedom must be presupposed or “postulated” by practical reason (5:132). 

Kant’s argument raises two fundamental sets of questions.  The first set of questions, the focus of this essay, concerns Kant’s claims for the practical relevance of his metaphysics of morals.  The first half of this essay outlines the role Kant defends for international law and his treatment of concrete rules of international law; its second half suggests that at the core of Kant’s philosophy of international law lies a notion of an ever-expanding ethical community. 

John Rawls and Jürgen Habermas, celebrated contemporary Kantians, substitute political institutions for this notion of an ethical community.  When investigating this substitution, and more generally the relation between what Kant calls outer or juridical freedom and inner, moral freedom, autonomy, a student of Kant’s philosophy of international law will ultimately confront a second, metaphysical set of questions concerning the nature of Kant’s account of human freedom. 

 

I Kant on the role of international law in securing freedom

For Kant, the closer a state approaches perpetual peace with its potential enemies, the more secure citizens’ juridical freedom will be.   There is “only one way” for states to approach this peace and that is to “give up their savage (lawless) freedom, accommodate themselves to public coercive laws, and so form an (always growing) state of nations (civitas gentium) that would finally encompass all the nations of the earth” (8:357).  Yet perpetual peace is “unachievable”: there are risks of tyranny and homogenisation in creating a world government and problems for such a government in attempting to govern effectively; states’ attachment to sovereignty and the right of nations will anyway prevent the establishment of a world government; and in the absence of a world-state, defensive wars will sometimes be necessary (6:350).  Given this, only “the negative surrogate of a league that averts war, endures, and always expands can hold back the stream of hostile inclination that shies away from right, though with constant danger of its breaking out”(8:357).   

Many commentators have been puzzled by Kant’s apparent and uncharacteristic reliance on arguments from experience in dismissing the notion of a global state.[8]  Some scholars argue that the logic of Kant’s own position should have led him to advocate as a practical ideal – as well as an aim in theory – the establishment of a federative union of states or world state with coercive powers to ensure compliance with its system of world law.  Thomas Pogge, for example, treats Kant’s account as “extremely unsettled” because Kant tried to evade calling for a world state.[9]   Pauline Kleingeld interprets Kant as advocating the establishment of a non-coercive league of states without any highest or legislative authority “because he regards it as the only possible road to the ultimate ideal, a state of states.”[10]

But in “Perpetual Peace” Kant also offers a principled distinction between the relationship among states (and the role of international law) and that among individuals in a state of nature (and the role of domestic law): “what holds in accordance with natural right for human beings in a lawless condition, ‘they ought to leave this condition,’ cannot hold for states in accordance with the right of nations” (8:355).[11]  To understand this distinction, it is necessary to understand why Kant argues that human beings are under a duty to institute a system of just public laws, to constitute a juridical community. 

 

(i) Kant on anarchy, freedom and the duty to form a “coercive” juridical community

For Kant, morality concerns the motivation for a particular individual’s choice to perform a permissible action (6:220): the virtuous person acts only on reasons (maxims) that can be formulated as laws capable of receiving universal consent.   When she does so act, she is internally free, autonomous: an action will be free if and only if done for the sake of this rational moral law rather than at the promptings of “sensible nature”.   Kant argues that if I deny that my will is free, I must deny that I can conceive the possibility of my willing autonomously: to obey the moral law, I must will autonomously and so I must accept my inner freedom as a “practical postulate”.  Action in accord with moral law is motivated by reason: as such, reason “is not simply a means for reconciling oneself to reality, but provides man with the destination of transforming reality itself, desiring and striving for the attainment of a rational ideal in his own person and in the world as a whole.”[12]      

Relying on this connection between inner freedom, self-legislation and moral virtue, Kant argues that juridical laws are incapable of promoting virtue.  Human beings can be physically coerced, but another person cannot make me act for the sake of a moral obligation: “I can never be constrained by others to have an end”(6:381).  Juridical law cannot dictate the motives for ones actions: all it can do is create the conditions for moral, autonomous action.  Justice or Right is inherently relational, governing the permissibility of “outer” or “external” actions by human beings whose actions inevitably limit those of others.  Just law requires one “to obey no other external laws than those to which I could have given my consent” (8:350); it permits any action that “can coexist with everyone’s freedom in accordance with a universal law, or if on its maxim the freedom of choice of each can coexist with everyone’s freedom in accordance with a universal law”(6:230).   

Kant argues that individual judgments of justice cannot always be made in a political state of nature: in disputes relating to property, judgments remain at best “provisionally” just in the absence of an agreed system of juridical rules on acquisition and transfer (6:257).   The laws required in fleshing out this system of juridical rules are in content arbitrary, needed simply because authoritative rules are required.  By Kant’s definition this juridical law is necessarily “coercive”, not because of the physical sanctions that may follow disobedience but because it obliges individuals to subject their will to that of the law-giver: “any limitation of freedom through another’s choice is called coercion”(8:290). 

Since just actions require juridical law, its institution is “the unconditional and first duty in any external relation of people in general, who cannot help mutually affecting one another” (8:289).  Even a society of devils could be persuaded to comply with the rule of law as the freedom it assures them can be exploited to pursue their own “internal” evil ends: it is possible to comply with just law with selfish or wicked motives.  But without a legal system, even the most moral human beings will find themselves either under the whimsical dictates of an absolute sovereign or in an anarchy where there is no clear source of definitive legal judgment to resolve disputes and where property rights remain indeterminate.  They lack the “public coercive laws, by which what belongs to each can be determined for him and secured against encroachment by any other”(8:289).

In providing citizens with this juridical freedom, Kant argues that domestic law, international law and cosmopolitan law are mutually dependent (6:311) [13]. They operate not as parallel legal systems but as complements to one another: juridical freedom cannot be protected by domestic law alone, given the perpetual threat posed by international war to individual’s external freedom (including their property) and the need for cosmopolitan law if individuals are to be free to relate to and trade with foreigners.  If domestic law, international law or cosmopolitan law is unjust, “the framework of all the others is unavoidably undermined and must finally collapse”(6:311).   

 

(ii)  Kant on the nature of international law

According to Kant, the moral right and duty of individuals to create a system of “coercive public laws” does not apply to relations between states: “they already have a lawful internal constitution and hence have outgrown the constraint of others to bring them under a more extended, law-governed constitution in accordance with their concepts of right” (8:355-6). 

Kant’s position here might appear close to that of Hobbes, who argues that the need for positive law is satisfied with the establishment of the state.  Hobbes treats moral rights and duties as existing in the state of nature; those rights conflict and the Leviathan is needed to create harmony.  Hobbes’s often misunderstood acknowledgement of violence and deceit as “the two cardinal virtues” in war is part of an argument that war is the worst possible state for mankind.[14]  Hobbes aims to convince rulers that wars of aggression are usually undesirable, presenting “alliances and confederacies” as important deterrents in the brutal international state of nature. “Leagues between Commonwealths”, Hobbes suggests, are “profitable for the time they last”: the most that can be hoped for is a shifting, unstable set of leagues or federations.[15]     

Is Kant best read as a Hobbesian, treating international law as an articulation of unstable and conflicting moral rules rather than law properly so called?   After all Kant finds it “astonishing that the word ‘right’ has not yet been entirely banished from the politics of war as pedantic”:

[F]or Hugo Grotius, Puffendorf, Vattel and the like (only sorry comforters) – although their code, couched philosophically or diplomatically, has not the slightest lawful force and cannot even have such force (since states are not subject to a common external constraint) – are always duly cited in justification of an offensive war, though there is no instance of a state ever having been moved to desist from its plan by arguments armed with the testimony of such great men. (8:355)

If Kant’s position really is distinct from Hobbes’s, must he be committed to the need for the  “external constraint” of a global state and global law– despite his own argument that the moral obligation to institute a juridical state does not apply to the relations between states?  If not, are Kant’s provisional rules of international law the same as Hobbes’s shifting moral rules?   

Kant’s argument about Job’s “sorry comforters” introduces his response to pessimistic assessments of peace plans. In the Book of Job, Eliphaz, Bildad and Zophar all err in counselling Job that God never allows the innocent to suffer and so that his current dreadful sufferings must be punishment to encourage repentance for some personal sin, after which all will be well.  As a man of integrity, Job refuses to repent because he knows himself to be innocent.  Grotius, Pufendorf and Vattel, Kant argues, gloss the undisguised “depravity of human nature” manifest in international relations as actions warranted by an evident and just international legal code.   But just as Job’s comforters had a childish notion of the justice of God’s ways, so the lip-service of bellicose states to the law of nations and the writings of jurists on the law of nations pay homage to a slumbering idea of juridical right.  Widespread consent to rules of the law of nations reflects an unarticulated international social contract: the very concept of the law of nations is “necessarily connected” with the idea of a “free federation” of republican states (8:356).[16]  

In “Perpetual Peace”, Kant proposes three key terms for peaceful federation.  The first “definitive article of perpetual peace between states” requires that the civil constitution of every state member of the federation be republican: political power must be dispersed between a separate legislature, executive and judiciary and the sovereign (whether a monarch, an aristocracy or a democratic government) must enact laws in line with the principle of right, laws that are capable of receiving universal consent.  The second article requires the creation of this peaceful federation, already incipient in states’ recognition of rules of the law of nations. 

The third article requires as a “supplement” (to republican domestic law and the law of nations) recognition of “the rights of men, as citizens of the world” to “the conditions of universal hospitality” (8:360).  The rights “of visitation” permit “an attempt at intercourse with the original inhabitants”.  Thanks to these, the peaceful federation will gradually extend: “distant parts of the world can enter peaceably into relatiosn with one another, which can eventually become publicly lawful and so finally bring the human race ever closer to a cosmopolitan constitution”(8:358.).

Kant insists that the league of peace (foedus pacificum) “does not look to acquiring any power of a state but only to preserving and securing the freedom of a state itself and of other states in league with it, but without there being any need for them to subject themselves to public laws and coercion under them (as people in a state of nature must do)”(8:356).  Although there is a moral obligation on neighbouring states to form a peaceful league, that league must “involve no sovereign authority (as in a civil constitution), but only an association (federation); it must be an alliance that can be renounced at any time and so must be renewed from time to time”(6:344).  Kant’s point is that “the individual Rechtstaat considered on its own cannot fully solve the problem of Right even at the domestic level”: Kant’s account of the law of nations is an acknowledgement of States’ “need for (non-coercive) containment of their own coercive powers”.[17] 

            The international law recognised by this league is a matter of “right” yet, as self-imposed, it is not coercive in Kant’s sense.  Perhaps Kant’s approach to rules of international law is best understood as akin to his approach to rules of equity in domestic law, which he treats as rules of “equivocal right”.  Equity, Kant argues, is a “right in a wider sense (ius latium), in which there is no law by which an authorization to use coercion can be determined”: it “admits a right without coercion”.  Claims of equity, according to Kant, do concern claims of right, not “merely calling upon another to fulfil an ethical duty (to be benevolent and kind)” (6:234).  

Equitable claims cannot usually be resolved by a judge as their “conditions” are “indefinite”: the motto of equity is “the strictest right is the greatest wrong”, which means that “this ill cannot be remedied by way of what is laid down as right, even though it concerns a claim to a right”.  As such, equitable claims usually belong “only to the court of conscience (forum poli) whereas every question of what is laid down as right brought before civil right (forum soli)”(6:235).  But Kant does argue that a judge in a civil court may and should rely on rules of equity “where the judge’s own rights are concerned, and he can dispose of the case for his own person”, as when a sovereign indemnifies his servants for damages incurred in his service even though that sovereign “could reject their claim by strict right on the pretext that they undertook this service at their own risk.”(6:235) 

 

Analogously, Kant is clear that no state is entitled to impose international obligations on another.  This seems to render Kant’s rules of international law rules of “equivocal right” binding in conscience, with the sovereign or the people in the place of the judge in Kant’s example, above.  In the absence of world law, some of the rules of international law (particularly those relating to territory) remain “provisional” (like property rights in the state of nature) and some disputes will continue to be settled by war.  But extant international law can gradually achieve its role in promoting and spreading peace, Kant seems to believe, so long as one crucial change is introduced: a ban on espionage. 

 

(iii) Kant on the legal prerequisites for peaceful federation

Kant argues that six “preliminary articles’, negative rules of international law, are a prerequisite for the firm establishment of a peaceful federation of states.  Three of these six rules (the first, fifth and sixth) are “of the strict kind (leges strictae), holding without regard for differing circumstances” and “insist on [the ruler’s] putting a stop to an abuse at once”(8:357) . With one significant modification, they articulate identical versions of rules found in the writings of “sorry comforters” like Vattel.  They declare peace treaties invalid if drafted to reserve justifications for future hostilities; that no state may use force to interfere with the constitution or administration of another state except where anarchy prevails; and a ban on all “such modes of hostility as would make mutual confidence impossible in a subsequent state of peace”. 

In accord with Vattel, Kant includes in this last rule a ban on the use of assassins.  But unlike the use of poisoning and assassination, for Vattel seducing a subject of the enemy to turn spy or betray his country does not “strike at the foundation of the common safety and welfare of mankind”: it is “practised in all wars” and not “contrary to the external law of nations”, although if at all excusable, “only in a very just war, and when the immediate object is to save our country, when threatened with ruin by a lawless conqueror” since he who “tramples upon justice and probity, deserves in his turn to feel the effects of wickedness and perfidy”.[18]

By contrast, Kant argues emphatically that the use of spies is as dangerous as that of assassins: it encourages vices of dishonesty which “would also be carried over into a condition of peace, so that its purpose would be altogether destroyed” (8:347)  Just as the concept of the law of nations is senseless if not potentially the fruit of a federation of states with republican constitutions, so a law of nations that countenances fundamental deceit falls into the deathly error of the moralising politicians who make improvement impossible. 

Kant’s three remaining preliminary articles he characterises as “leges latae”: premature insistence on these rules of international law would be counter-productive.  The second preliminary article allows that, provisionally, the “inheritance, exchange, purchase or donation” of territory remains licit as it might prevent war: these modes of acquisition are to be abolished in the future as incompatible with the right of a people to rule and dispose of itself, but delay implementing this prohibition is permitted so that restitution should not be made precipitately (8:347).  Under the third preliminary article, standing armies are to be abolished in the course of time; under the fourth, states will no longer be permitted to contract national debts to finance war.  But the ruler may “postpone putting these laws into effect, without however losing sight of the end” (8:347). 

In the Rechtslehre, Kant reiterates that the attempt to expand the peaceable federation of republics “should not be made by way of revolution, by a leap, that is, by violent overthrow of an already existing defective constitution (for there would then be an intervening moment in which any rightful condition would be annihilated).  But if it is attempted and carried out by gradual reform in accordance with firm principles, it can lead to continual approximation to the highest political good, perpetual peace”(6:355).

 

(iv) Injustice and reform of the law of nations: the public role of the philosopher

It is to a group of “part-time men of learning”[19] that Kant entrusts oversight of this ultimate political end.  For Kant, enlightened legal refinements, reorganisations and reforms are defined against a standard of “publicity” – by which Kant means not confused public discourse but “the use which someone makes of it as a scholar before the entire public of the world of readers”.  The “extra-vocational” use of reason, for Kant, is public; the “vocational” use of reason is private, the use which one “may make of it in a particular civil post or office [with] which he is entrusted”, a use where it is “impermissible to argue” and one behaves “passively”, as “part of a machine”, bound by an “artificial accord” to promote certain “public ends”.(8:37) 

The bulk of Kant’s public were the military officers and clergymen as well as the professors all of whom, as civil servants, had their salaries paid by the state – along with a small supplement of independent writers who made their living by their pens.[20]   Officials obey, but off-duty they also argue for reform of the laws which they obey.  So a “private” army officer must follow orders, but he must be allowed the freedom to publish his criticisms of “the errors in the military service”; a private citizen must pay his taxes, but he must also be free to publish “his thoughts about the inappropriateness or even injustice” of fiscal measures (8:37-38). Public (published) debate among scholars “on the inadequacies of current institutions” Kant envisages as spreading “public insight into the nature of these things”, culminating in a petition to the crown for reform(8:39).  Publicity, freedom of the quill, informs the prince of law reforms he would have introduced himself if only he had thought of them(8:304). 

After bitter experiences under Frederick William II, Kant narrows the privilege he claims for free debate, limiting it to the “learned community” of professors.  Scholars in the traditionally designated “higher” faculties (theologians, lawyers and medicine) have to teach what they are told, although they may debate freely among themselves.  For the scholars in the “lower” philosophy faculty, however, Kant claims full freedom as “without a faculty of this kind, the truth would not come to light (and this would be to the government’s own detriment” (7:20).[21] The philosophers’ reading “public” remains that of the members of government and the higher faculties, whose arguments must be assessed and if necessary counteracted by philosophers lest the lawyers, medics and theologians set themselves up as “miracle workers” offering false remedies to the wider public or even encouraging insurrection (7:31).

Philosophers’ role in advising government is the focus of Kant’s ironically titled “secret” supplementary article in “Perpetual Peace”: Kant argues not “that a state must give principles of philosophers precedence over the findings of lawyers (representatives of the power of the state), but only that they be given a hearing” (8:369) Practising what he preaches, in the second Appendix Kant explains that “the formal attribute” of justice can be articulated in terms of a test of public admissibility or “publicity” (8:381). Negatively, “actions relating to the rights of others are wrong if their maxim is incompatible with publicity”(8:381); affirmatively, “[maxims which need publicity (in order not to fail in their end) harmonize with right and politics combined”(8:386).  The “transcendental principle of publicity” can be used to give a principled account of the law of nations, dispensing with the “prolixity” and “subtle reasoning” of jurists who want to settle questions of international law “by a dogmatic deduction of grounds of right” (8:382). 

Kant offers four examples.  Firstly, maxims proposing the legality of insurrection or tyrannicide could not be acknowledged openly without conceding lawful authority to the people rather than the sovereign.  The “wrongfulness of rebellion is therefore clear”(8:382)  A free press is the only lawful outlet for protest against tyranny – although if a (necessarily unconstitutional) revolution takes place, the head of state “would return to the status of a subject and must not start a rebellion for his restoration”(8:383).   

After this rejection of a limit on a sovereign’s power, Kant addresses a sovereign’s own limiting of his responsibility by classifying a treaty as personal (rather than real) and so not binding on the state.  He targets the claim to “double personality” by the prince as both head of state and highest official accountable to the state: “what it has bound itself to do in the first capacity it is released from in the second.”(8:383) The principle of publicity shows that with his signature a sovereign always binds his country: “if a state (or its head) divulged this maxim of his, then every other would naturally naturally either shun him or unite with others in order to oppose his pretensions”(8:384).

Kant then considers the use of force against a neighbouring sovereign.  Grotius and Pufendorf had denied any collective right to use force pre-emptively against a neighbouring state growing in strength, but Vattel granted one.  Kant argues that this “maxim of political expediency”, if publicly acknowledged, will “thwart its own purpose” since “the greater power would anticipate the smaller ones, and as for their uniting, that is only a feeble reed against someone who knows how to make use of divide et impera.” And, he concludes swiftly, it “is therefore unjust”(8:384). 

But while small states have no right to use force collectively against a neighbour growing in strength, neither has a “great” state a right to annex a smaller state that “breaks up” its territory: the larger state “must not divulge such a maxim in advance; for either smaller states would unite in good time or other powerful ones would do so in order to contest this booty, so that this maxim makes itself impracticable by its very openness”(8:384). 

The first of these two bans on the use of force Kant lifts in his later Rechtslehre, permitting as “legitimate” the pre-emptive use of force against a “menacing” enemy – and also allowing the use of force without prior peaceful negotiation in retaliation for “an offence” or  against an “unjust enemy”, one opposed to a peaceful league whose words or deeds reveal “a maxim by which, if it were made a universal rule, any condition of peace among nations would be impossible and, instead, a state of nature would be perpetuated”(6:346, 349). 

Despite the narrowing of his “public” and the eroding of his bans on the use of force, Kant’s hope remains: that of progress, through reasoning able to bear the light of publicity, towards a spreading system of republican government and an ever-expanding peaceful federation of republican states.  With this will come “an increase of the products of legality in dutiful actions whatever their motives”:

Gradually violence on the part of the powers will diminish and obedience to the laws will increase.  There will arise in the body politic perhaps more charity and less strife in lawsuits, more reliability in keeping one’s word, etc., partly out of love of honor, partly out of well-understood self-interest.  And eventually this will also extend to nations in their external relations toward one another up to the realization of the cosmopolitan society, without the moral foundation in humanity having to be enlarged in the least; for that, a kind of new creation (supernatural influence) would be necessary.  - For we must also not hope for too much from human beings in their progress toward the better lest we fall prey with good reason to the mockery of the politician who would willingly take the hope of the human being as the dreaming of an overstressed mind. (7:92-3)

 

II  Beyond peaceable federation: cosmopolitan ethical community or cosmopolitan international institutions?

The nature of Kant’s hope here for international law is widely disputed: is it that the peaceable federation of individual republics will one day be superseded by a cosmopolitan world state governed by a system of world law, or that the peaceable federation of individual republics will be complemented by an ethical cosmopolis which will expand thanks to recognition of “equivocal” principles of international and cosmopolitan right? 

 

(i) Juridical and internal freedom as mutually dependent ideals

Some contemporary scholars focus on Kant’s suggestion in the passage above that an increase in legality – up to and including the “realization of the cosmopolitan society” – does not require the “enlarging” of “the moral foundation in humanity”.  On this account (which I will contest), “Kant wants his argument for Recht, and for a republican instantiation thereof, to be independent from his morality.”[22]  Kant presents humanity with a choice between a prudential or “self-interested” focus on the building of institutions (to offer the peace and freedom moral people need) and a focus on converting every devil into a virtuous man, only then building together political institutions.  The first alternative is then presented as the only one possible, given Kant’s bleak vision of humans’ capacity for evil combined with his understanding of moral virtue as a self-mastery to be achieved only for and by oneself.  So Kant’s justifications for legal authority, such scholars conclude, can and indeed must stand without his moral philosophy.[23] 

Kant’s moral philosophy does entail his doctrine of Right, since morally autonomous individuals need the freedom, absence of violence and determinacy with which Kant’s principle of Right is concerned and which is ensured by a state that respects the rule of law.  But selfish, self-interested and vicious people also need this same “external” freedom.  Kant famously argues that intelligence, fortune, courage and happiness have no intrinsic moral value as they can lead to pride and arrogance (4:393), yet these are crucial elements of the “unsocial sociability” that leads people to subsume themselves in a social order.  He treats war as an empirical force of progress, encouraging heads of state to show respect for humanity, spreading populations over the earth, and compelling people to enter into “more or less lawful relations”(8:121,363,365).  At the international level, suffering and the commercial costs of war are to lead free civil institutions to force their governments into an international federation of nation states (8:350).  None of these empirical causes of progress have intrinsic moral value – and neither does juridical freedom. Kant’s account of Justice or the principle of Right, as a set of legal constraints protecting zones of freedom from the interference of others, can be “embedded” within either a Kantian morality or a Hobbesian one – as evidenced by Kant’s argument that even a group of intelligent devils would set up a state.[24]

A central problem with such interpretations is that they assume that for Kant there could be a world in which justice or Recht prevailed only because every citizen was selfishly motivated (rather than acting from duty, for the sake of moral principles): this conflicts with Kant’s insistence that “if justice goes, there is no longer any value in human beings living on the earth.”(6:332)  The interpretation defended here is that in Kant juridical or external freedom and moral freedom (autonomy) are mutually dependent ideals.[25]    

This rival interpretation of Kant’s account of the relationship between law and morality focuses on the links that Kant makes between subjection to just juridical law and the possibility of a growth in charity, reliability, and “progress towards the better”.  For Kant, the enactment of juridical law is a necessary step for moral progress, although far from sufficient for moral “rebirth”.  The civilization or law-abidingness assured by juridical legal institutions not only gives the state “a moral veneer (causae non causae), but also, by its checking the outbreak of unlawful inclinations, the development of the moral predisposition to immediate respect for right is actually greatly facililitated …; thereby a great step is taken toward morality (though it is not yet a moral step), toward being attached to this concept of duty even for its own sake, without regard for any return.”(8:375-6) 

So while law-abidingness will often lead to legalism, only in a juridical society can man win for himself culture, civilisation.  In Kant’s famous extended simile, it is with men as with trees in a forest:  “just because each one strives to deprive the other of air and sun, they compel each other to seek both above, and thus they grow beautiful and straight.  Whereas those that, in freedom and isolation from one another, shoot out their branches at will, grown stunted and crooked and awry.”[26]  All civilised or “social” virtues, including those inculcated by juridical law, are “small change”: “it is a child who takes it for real gold.”  But this is not an argument for dismissing social conventions and habits as valueless:

it is still better to have small change in circulation than no funds at all, and eventually they can be converted into genuine gold, though at considerable loss.  It is committing high treason against humanity to pass them off as mere tokens that have no worth at all […].  Even the illusion of good in others must have worth for us, for out of this play with pretenses, which acquires respect without perhaps earning it, something quite serious can finally develop.[27] 

Following Rousseau closely, Kant also associates the evils or passions “which wreak such devastation” on a human being’s “originally good predisposition” with this same entry into stable juridical community: envy, addiction to power, avarice, “and the malignant inclinations associated with these” arise “as soon as he is among human beings.”  Any group of human beings “will mutually corrupt each other’s moral disposition and make one another evil.”(6:93-4)  The question of quis custodiet, of who guards the guards, haunts Kant’s political essays:

Man is an animal which, if it lives among others of its kind, requires a master […] who will break his will and force him to obey a will that is universally valid, under which each can be free.  But whence does he get this master?  Only from the human race.  But then the master is himself an animal, and needs a master […]. The highest master should be just in himself, and yet a man.[28]

 

(ii)  Guarding the guards: the ethical community and the political community

Kant’s famous argument about the rule of law for a nation of rational devils is part of a response to “Princes” who reject republican constitutions as fit only for a people of angels: the problem of government is solvable “even for (not by) a people of (rational) devils, because it depends only on a right ‘ordering’ of society”.[29]  But what ensures that solvers of this problem, the enlightened, scholarly community of public guardians, will give good, disinterested advice?  Kant after all recognises that in the quarrel between politics and morals, “true courage” lies not so much in braving external trouble and sacrifice “but in looking straight in the face what is far more dangerous, the deceitful and treacherous yet subtly reasoning principle in ourselves which pretends that the weakness of human nature justifies any transgression”(8:379).

Kant’s ultimate answer involves a combination of rational theology and practical anthropology.  There are, he claims, no truly diabolical human actions (principled decisions to do evil): evil actions are inherently unprincipled (6:37)[30].   Moral “rebirth” or conversion brings one to see principled, legislative form as the moral filter for ones personal reasons and the test to be articulated and applied to ensure the justice of juridical law.  While the “small change” of law-abidingness nurtured by juridical law is far from sufficient to cause this conversion, it is nonetheless a prerequisite.  It is ultimately because even oppressive legal regimes nurture this small virtue of law-abidingness that Kant rejects forceful rebellion or revolution as a means to enlightened domestic or international law (8:378).  But once they have complied with their moral duty to enter into a juridical community, given the risks of mutual corruption human beings will need the support of an ethical community “solely designed for the preservation of morality by counteracting evil with united forces”(6:94).[31]  

Not only will individuals need the support of an ethical community, they are, Kant argues, under a moral obligation to become members of this “universal republic based on the laws of virtue”.  This duty to try to leave the ethical state of nature (which Kant distinguishes sharply from a juridical state of nature) is a unique duty “not of human beings toward human beings but of the human race toward itself”.  This duty presupposes “another idea, namely, of a higher moral being through whose universal organization the forces of single individuals, insufficient on their own, are united for a common effect.”(6:97-98) This divine co-ordinator is a lawgiver who is “purely internal” and “who knows the heart, in order to penetrate to the most intimate parts of the dispositions of each and everyone”(6:100,99).

Some argue that as a matter of philosophical consistency, Kant’s references to a cosmopolitan constitution must ultimately be understood as a juridical constitution, the constitution of a coercive world state.  On the rival reading proposed here, the juridical law to be nurtured in distant territories will be republican domestic law supplemented by “equivocal” rules of international right (preserving peace) and “equivocal” rules of cosmopolitan right (allowing international publicity for enlightened thought).   In creating “external freedom” and nurturing law-abidingness, this juridical law allows for (although certainly does not necessitate) the emergence of an ever growing ethical cosmopolitan community.   

It is far from the spirit of Kant’s writing on law to argue that he “fails” to propose a world state or greater powers for an international federation out of cowardice, because he “thought unhistorically”[32] or was an insufficiently “passionate” reformer and republican.[33]   Kant’s point is more revolutionary: that our ultimate allegiance belongs to no mere form of government, no temporal power, but instead to the moral laws elaborated autonomously within an ever-expanding ethical community.[34]  For Kant, the revolution must come within men’s hearts, and spread via their heads both to their “characters” and to their juridical laws; that revolution is to be led by philosophers.  Kant’s famous use of Horace’s phrase, Sapere Aude!, as the “motto of enlightenment” indicates how for Kant enlightenment is both a process in which men participate collectively and an act of courage to be accomplished personally.  It is through that very process of enlightenment, at once collective and personal, that law will be improved, that the binding but non-coercive force of international law will be recognised, and that the ethical cosmopolis will expand.  And increasingly just law can nurture the discipline or “law-abidingness” without which that enlightenment cannot begin.[35] 

 

(iii) Rawls’s rewriting: a “realistic utopia”

In the work of both Jürgen Habermas and John Rawls, two of the most influential twentieth century political philosophers whose work builds on themes from Kant, faith is staked firmly on the nature of correctly designed international institutions instead of on a link between the transformative capacities of reason and the growth of a “public” ethical community. 

Like Kant, Rawls aims to justify practical principles by appealing to a conception of practical reasoning.  But unlike Kant, Rawls does not aspire to construct an account of principles that render practical reasoning possible (and so publicisable): Rawls argues that “not everything can be constructed and every construction has a basis, certain materials, as it were, from which it begins”. [36]  Rawls’s principles of justice are designed to cohere with “our moral experience”[37].   He aims to construct not a full moral philosophy of ethical community but only principles of justice that fit with the “experience’, “convictions” or “intuitions” of those living in a liberal democratic polity: in his later work, drawn together in his Political Liberalism, his principles are explicitly defended on the basis not of their rationality but of their political acceptability as political standards of “public reason”. [38]

            Rawls offers a social contract model to illustrate his procedure: his story of “the original position” is presented as “a natural guide to intuition”.  The imaginary individuals in the original position are veiled in ignorance of their vision of the good life, their aspirations and natural endowments, and their social position: the placing of this veil is designed to reveal shared intuitions about the irrelevance of such knowledge to a theory of justice.  Those in this original position will agree on a first principle of justice that “Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all.”  This principle of equal basic liberties is combined with a second principle of justice, a principle of “fraternity”, requiring social and economic inequalities to be arranged to the greatest benefit of the least advantaged, consistent with a just savings principle (the difference principle), and attached to offices and positions open to all (fair opportunity).[39]  Although accepted for reasons of political pragmatism, these principles of justice will transform a polity from a society held together by a “modus vivendi” into one that affirms the principles of justice on varied moral grounds.  As such, the principles of justice articulate a thin conception of ethical community.  Rawls offers limited explanation let alone justification for why or how at the domestic level the juridical institutionalisation of “public reasons” will be morally transformative.[40] 

Rawls distinguishes his original account of justice, which applies to representative people within a state, from an account of the just laws that are to apply to a society of states or “peoples”.[41]  Explicitly following Kant, Rawls assumes that a world government “would either be a global despotism or else would rule over a fragile empire torn by frequent civil strife as various regions and peoples tried to gain their political freedom and autonomy.”[42]   He introduces a “double contract’, a second “original position” to illustrate how liberal societies can play a leading role in developing a “law of peoples”.   In this second “original position’, the “people’s representatives” will agree on a “Law of Peoples” which will offer fair terms of cooperation to illiberal, hierarchical societies (including Kant’s ban on forceful interference in other states’ affairs) and protect minimal rights of asylum for individuals (expanding on Kant’s minimal “cosmopolitan right” to visit).  This “reasonable Law of Peoples” explicitly reflects extant international law limitations on the use of force and contemporary accounts of international human rights law.[43]  

Rawls does not include Kant’s ban on espionage and, in direct conflict with Kant’s position, Rawls accepts what he calls a “Supreme Emergency Exemption”, countenancing attacks on non-combatant civilians.[44]   He alludes to Kant’s empirical suggestions that republics are inherently peaceful and have no cause to go to war against each other; that international commerce is capable of replacing war; and that philosophers’ public articulation of the real interests of their society will help politicians act as true statesmen[45]. But Rawls’s aim is not perpetual peace.[46] 

Although Rawls’s account of international law strips away Kant’s most fundamental principles, his general ambitions for juridical institutions go far beyond Kant’s.  The great evils of human history, Rawls insists, follow not – as Kant ultimately argued – from personal moral failings, but from political injustice.[47] 

[T]wo ideas motivate the Law of Peoples.  The first is that the great evils of human history – unjust war, oppression, religious persecution, slavery, and the rest – result from political injustice, with its cruelties and callousness.  The second is that once political injustice has been elimated by following just (or at least decent) social policies and establishing just (or at least decent) basic institutions, these great evils will eventually disappear.[48] 

This “just or at least decent world” Rawls calls “a realistic utopia”, one that he believes is “in the tradition of the late writings of Kant” because the “very possibility of such a social order…suffices to banish the dangers of resignation and cynicism… and gives meaning to what we can do today.”[49]

Although Rawls’s “representatives” in the second original position bring to the second original position only their “political conception of justice” and no “conception of the good”, in agreeing on a law of Peoples they must decide “what moral climate” they wish to see.[50]  No account is offered of how this moral judgment is to be made nor of how “institutions” constructed in line with “the Law of Peoples” can and will eliminate the great evils of human history.[51]  

 

(iv) Habermas’s rewriting: democratic world government

In his work in the 1990s, Habermas focuses on Kant’s emphasis on the moral role and potential of juridical law, but Habermas’s faith in institutions exceeds even Rawls’s, conferring on juridical law the role played by Kant’s ethical community.[52] While Rawls aims to articulate a liberal account of justice based on contemporary western intuitions, Habermas sets up a “moral point of view” immanent within our use of language and which he argues cannot be attained by any one philosopher “expert on justice”: “what is needed is a “real” process of argumentation in which the individuals concerned cooperate.”[53] 

Rejecting Kant’s notion of international law as a complement to constitutional and cosmopolitan law, Habermas argues that international law must be transformed into a global or cosmopolitan “law of individuals”: treating Kant’s objections to a global state as focussed exclusively on preserving diverse national cultures, Habermas argues that Kant’s position was “color blind’, “provincial” and ignored the point that “‘peoples” of independent states who restrict their sovereignty for the sake of a federal government need not sacrifice their distinct cultural identities.”[54]  Habermas’s global Leviathan, “a juridification of the state of nature among states”, can be realised only through the democratic discourse enabled by democratic institutions: this will result in “the democratic transformation of morality into a positive system of law with legal procedures of application and implementation”.[55]   “Democratically generated” law is inherently rational and legitimate: democratic legislation is a “legitimacy generating procedure’[56].  Invoking “the moral universalism that guided Kant’s proposals”, Habermas endorses proposals to transform the United Nations into a “cosmopolitan democracy”, concentrating on “establishing of a world parliament [of elected representatives of the totality of world citizens], developing a more complete world court system, and beginning the long overdue reorganization of the Security Council.”[57] 

Habermas’s response to the question of how these vast institutional reforms address the problem of quis custodiet is to return to the publicizing of democratic debate: publicity alone is enough to hold institutions accountable, without reference to the rational moral principles it is hoped such public debate will articulate, let alone to the moral faith that this hope requires.[58]

 

Conclusion

Some conclude that Kant’s own hopes for publicity and the class of philosophers were misplaced: publicity has shown itself to be “a very important weapon to gain support for concealed private interests”, while “large numbers of well educated intellectuals have engaged in the gravest betrayals of reason and supported policies that could by no means meet Kant’s idea of morality.”[59] 

But Kant’s hope is founded not on an account of the empirical actions of others but on a moral faith in future possibilities: he does not rely on an illusory wisdom that imagines it “can see further and more clearly with its dim moles’ eyes fixed on experience than with the eyes belonging to a being that was made to stand erect and look at the heavens”(8:277).  Kant is revisionary: he thinks that we can transform the “is” of human nature in the light of the “right”, an ambitious enterprise that can only be achieved with the help of moral faith.  This moral faith requires a “rebirth”, a vow to make “truthfulness his supreme maxim, in the heart of his confessions to himself as well as in his behaviour toward everyone else”[60].

               The highest good of a just world, the realisation of an “ethical community”, cannot be achieved solely through the cooperation of individuals of righteous will allied to the principle that injustice is inherently “a threat to everyone”(8:381).  It also requires the cooperation of nature or fortune.  In one powerful contemporary account, O’Neill argues that to adopt Kant’s position we need only assume “that there is no evidence that progress is impossible”: by adopting and acting on an assumption that rational, enlightened progress towards the growth of an enlightened ethical community is possible, we create that very possibility.[61]  But such austere, non-metaphysical reconstructions require an unreasoned faith in the possibility of personal and cultural progress– with the faint encouragement of a few inspiring, empirical “signs”.  They render the task of moral transformation impossible.[62] 

One of Kant’s key worries is that people will lack motivation to act unless they have assurance that their efforts will have an effect in the world: they want assurance, that, unlike Sisyphus, they will not witness the boulder they pushed uphill rolling straight back down.  A righteous man must be persuaded to accept a limited metaphysics, including the practical postulates of God and immortality: a righteous atheist like Spinoza who sees nothing but futility and “aimless chaos” around him, will be unable to maintain the right “moral sentiment”.[63] 

Kant believed that it was necessary to offer not evidence but rational grounds for his hope, for his moral faith in historical progress.  Key elements of that moral faith (beliefs in freedom, the immortality of the soul and the existence of God) had to be defended as practical postulates, “not as such demonstrable” but corollaries of freedom and its a priori unconditionally valid practical laws (5:122).[64]   Without a moral “conversion”, on Kant’s account moral action is impossible.  Without Kant’s practical postulates, a hope in the endurance of moral conversion and in the spread of the ethical community is rationally unwarranted.  And without Kant’s moral anthropology, in particular the role he gives to his “ethical community” (a church whose culture is moral and whose priests are rational philosophers), Kant’s account of the worth of juridical law and of justice is unintelligible, and, according to Kant himself, the fight against “radical evil” hopeless.   

The absence of proof of the impossibility of progress is not enough to persuade a moral politician that her duty is to adopt a progressive, reforming attitude.  With Moses Mendelssohn, she could adopt a cyclical understanding of history and a piece-meal approach to international law, an approach defended by some classical realists.[65]  Or with gloomier conservatives like Christian Garve she might focus on international law’s role in damage limitation.[66]  From such perspectives, a moral politician would be particularly wary of the risks of unaccountability and tyranny in international institutions. 

For Kant, the priority of a metaphysics of morals is both unavoidable and inherently morally transformative.  If we were to adopt Mendelssohn’s theory that “humanity constantly vacillates between fixed limits”, we could only understand life as a farce – and one of which any reasonable spectator would rapidly tire (8:308).  A metaphysics of morals is needed to convince us that every one of us must act “as if everything depended on him”(6:101).

Notes

---

[1] I am indebted to Nicholas McBride, Patrick Capps, Alix Cohen, Katrin Flikschuh, James Murphy, Onora O’Neill, Arthur Ripstein, Veronica Rodriguez-Blanco, members of University College London’s “Political theory” seminar group, the editors of this volume and OUP’s reader for discussion and criticism of earlier drafts.  Oxford’s HLA Hart Fellowship scheme and the British Academy generously supported the research leave that allowed me to write this paper.  

[2] Sully had published a similar proposal (as a ‘Grand Design’ of Henri IV) in his Mémoires ou Œconomies Royales (1638).  William Penn’s “Essay towards the present and future peace of Europe” (1693) also outlined a design for an international arbitral tribunal. 

[3] “Abstract and Judgment of Saint Pierre’s Project for Perpetual Peace”, Rousseau on international relations (Clarendon, Oxford: 1991) eds. Stanley Hoffmann and David Fidler, 53 at 69-71 (my emphasis).  On Saint Pierre’s five articles of federation, see Hoffmann’s introduction at xv-xxvi  The Extrait was published in Rousseau’s lifetime (1761); the rest, including Rousseau’s Jugement, was published posthumously in 1782.

[4] “Abstract and Judgment”, 87-88.

[5] “Abstract and Judgment”, 93-94.

[6] “The state of war” in Rousseau on international relations (above, n0), 33 at *.

[7] Kant also argues that such thinkers operate in bad faith and rely on an unattainable empirical knowledge of the future: the only correct prudential maxims must be those that promote rational ideals (8:370). 

[8] Kant argues that any attempt to derive moral principles from experience runs “the risk of the grossest and most pernicious errors” (6:217).

[9] Pogge “Kant’s theory of justice” 79 Kant-Studien (1988) 407-433 at 427-433.  See also Allen Wood “Kant’s project for perpetual peace” 1.1 Proceedings of the eighth Kant Congress ed Hoke Robinson (Milwaukee: Marquette University Press, 1995) 3-18 at 11; Georg Cavallar Kant and the theory and practice of international right (Cardiff: University of Wales Press, 1999) at 123; Habermas (below); Otfried Höffe “Some Kantian reflections on a world republic” 2 Kantian Review (1998) 51-71.

[10] Kleingeld “Kant’s theory of peace” in Cambridge Companion to Kant and modern philosophy (Cambridge University Press 2006) 477-504 at 483, 485.

[11] In “Idea toward a universal history” (1784: 8:24-25), Kant treated relations between states as directly analogous to that between individuals in the state of nature.

[12] Allen Wood Kant’s moral religion (Cornell University Press, 1970) 34-37, 186.

[13] In earlier works, Kant claims that a perfect state constitution is not possible until rightful relations have been established between states (“Idea toward a Universal History” 8:24) and that international peace will not be achieved until states have become republics (“Theory and Practice” 8:311).  

[14] Leviathan XIII 63 (CUP edition p90).  See Noel Malcolm “Hobbes’ theory of international relations” in his Aspects of Hobbes (Clarendon, Oxford 2002) 432-456 at 433-434 (pace Kingsbury, in this volume). 

[15] Leviathan XV 73, XIII 60, XXII 122 (CUP edition pp 102, 87, 163).  Compare Kant 6:350.

[16] In arguing that Kant’s “ingenious idea was that the textbooks of natural jurisprudence could be seen […] as the lawbooks of an international Leviathan” (The rights of war and peace: political thought and international order from Grotius to Kant  (Oxford University Press, 1999) 219-220), Richard Tuck rightly highlights the positive role played by Kant’s “sorry comforters” but misrepresents Kant’s position as a defence of an “international Leviathan”.  Kant’s ideal of a global state is much closer to the “fiction” of a “natural” global state or “great society of societies” introduced by Christian Wolff in the Prolegomena to his Law of nations (§7,9,15).

[17] Flikschuh “Justice without coercion? Kant’s problem of ‘international right’”, manuscript, text preceding n30.

[18] Bk III Ch X s180

[19] John Christian Laursen “The subversive Kant: the vocabulary of ‘public’ and ‘publicity’” in James

Schmidt, ed. What is Enlightenment?: Eighteenth Century Answers and Twentieth Century Questions (University of California Press, 1996), 253-269 at 259.

[20] Laursen at 257. 

[21] “Perpetual peace” appeared in 1795, after the bulk of part I of the Conflict had been written but before its publication.

[22] Pogge “Comprehensive liberalism” p150

[23] Allen Wood “The final form of Kant’s practical philosophy” at 8 and Kant (Blackwell) at 172; Thomas Pogge “Is Kant’s Rechtslehere a ‘comprehensive liberalism’?” in Timmons ed. Kant’s Metaphysics of Morals (OUP 2002) 133-158; Richard Tuck Rights of war and peace 208; James Murphy “Practical Reason and Moral Psychology in Aristotle and Kant” in Moral Knowledge ed. Ellen Frankel Paul (Cambridge University Press, 2001).

[24] Pogge “Comprehensive liberalism” at 148, 149, contesting John Rawls’s categorisation of Kant’s liberalism as “comprehensive” (Political liberalism (Columbia UP, NY 1993) xv-xvi.

[25] George Kelly summarises Kant’s position well: Politics, idealism and history p166.  See similarly Louden Kant’s impure ethics 145-151; Pauline Kleingeld “Kant’s theory of peace” in Kant and modern philosophy Paul Guyer ed (Cambridge University Press) 477-503.

[26] “Idea for a universal history” Fifth proposition.

[27] 7: 152-3 Anthropology from a Pragmatic Point of View trans. Louden (Cambridge University Press, 2006) 44.

[28] “Idea for a universal history” Sixth proposition.

[29] Bernd Ludwig “Whence Public Right?” in Mark Timmons ed Kant’s Metaphysics of Morals: interpretative essays (Oxford University Press, 2002) at n4 p162.

[30] Also 7:293 (Anthropology:CUP p193).

[31] Louden (p160) rightly treats the idea of an ethical commonwealth as “the most important single legacy of Kant’s ethics; indeed of Enlightenment thought generally.”

[32] Habermas “Kant’s idea of perpetual peace, with the benefit of two hundred years’ hindsight” in Bohman and Lutz-Bachmann eds. Perpetual peace: essays on Kant’s cosmopolitan ideal 113-153 at 132.

[33] Howard Williams Kant’s political philosophy pp246-7.

[34] See Martha Nussbaum, “Kant and cosmopolitanism” in Perpetual peace: essays on Kant’s cosmopolitan ideal eds James Bohman and Matthias Lutz-Bachmann 25-58 at 31.  On Kant’s rejection of Stoicism (for rooting evil in natural desires rather than in the will), see Fredrick Beiser “Moral faith and the highest good” in Cambridge companion to Kant and modern philosophy (CUP) 588-629.

[35] See also Pauline Kleingeld “Kant’s theory of peace” on the “self-reinforcing process” which “gradually makes the legal peace ever more secure because peace becomes less a matter of mere self-interest and more a matter of moral disposition” (493-4). 

[36] Rawls Themes in Kant’s Moral Philosophy p514.  See O’Neill “Constructivism in Rawls and Kant” in Cambridge Companion to Kant (CUP 2002) at 347-367.

[37] Rawls reads Kant’s own conception of autonomous freedom as “elicited from our moral experience”.  Themes in Kant’s Moral Philosophy p514.

[38] As such, his project is fundamentally unKantian: see O’Neill “Constructivism in Rawls and Kant” at 359; Katrin Flickshuh Kant and modern moral philosophy (CUP 2000).  See also T.M. Scanlon “Rawls on Justification” in The Cambridge Companion to Rawls ed Samuel Freeman (CUP 2002) 139-167.

[39] Theory of justice pp302-3.

[40] Rawls relies on an “Aristotelian principle” that it is intrinsic to people’s good to realize their nature as free, equal and rational beings, and as such to act with justice (Theory of justice Chapters 8,9); he recasts his argument in Political liberalism (147-8), but limited justification is offered for the move beyond an instrumentalist modus vivendi. See generally Freeman “Congruence and the good of justice” in Freeman ed. Cambridge Companion to Rawls (Cambridge University Press, 2003).

[41] See Thomas Mertens “From Perpetual Peace to the Law of Peoples: Kant, Habermas and Rawls on International Relations” 6 Kantian Review (2002) 60-84. Contemporary “cosmopolitans” derive principles of global justice without this ‘double contract’, taking individuals rather than states as the primary focus of international justice. Rawls objects to this not for Kantian reasons (as ignoring the moral worth of the state and extant juridical law) but for ignoring the fact of ‘reasonable pluralism’.

[42] Law of Peoples p36.

[43] Law of Peoples p26-7

[44] Law of Peoples p98; cp 8:347.

[45] Law of Peoples 8,37,47,106,117,97. 

[46] Mertens “From Perpetual Peace to the Law of Peoples” at 77-78.

[47] Law of Peoples 7.

[48] Law of Peoples 126.

[49] Law of Peoples 126

[50] Pp 40, 42.

[51] Raymond Geuss rightly objects that the “most basic deficiency” of Rawls’s approach is its discouragement of theoretical self-consciousness: Outside Ethics (Princeton 2005) at 36.

[52] On the contrast between Habermas’s and Rawls’s positions, see Jan-Werner Müller “Rawls in Germany” 1 European Journal of Political Theory (2002) 163-179.

[53] Habermas Moral consciousness and communicative action trans. Christian Lenhardt and Shierry Weber Nicholson (Cambridge, Polity) at 67.

[54] Habermas “Does the constitutionalization of international law still have a chance” in his The divided west trans and ed Ciaran Cronin (Polity 2006) 115-193 at 128.

[55] Moral consciousness 140 (“Constitutionalization” 124), 149.

[56] “Constitutionalization” at 131 and 149.

[57] Moral consciousness 134; “Constitutionalization” 173-175.

[58] Cf Herbert Marcuse on “the systematic moronization of children and adults alike by publicity and propaganda” in US democratic politics: “Repressive tolerance” in R.P.Wolff, B.Moore and H. Marcuse A critique of pure tolerance (Boston: Beacon Press 1965) 83.

[59] Mertens “From Perpetual Peace to the Law of Peoples” at 67.

[60] 7:294-5 (Anthropology 194-5)

[61] Onora O’Neill “Historical trends and human futures” (text before n30; after n29).

[62] Cf Geuss on contemporary Kantianisms as representing “an understandable but defeatist position.  They encourage us to give up the search for a philosophically enlightened substantial discussion of ‘the good life’ and to limit our philosophical ambitions to describing – or perhaps also: claiming to ‘ground’ – the minimal conditions of smooth human cooperation.” P94

[63] 5:452-3 (Critique of Judgement).  See Beiser “Moral faith” at 616-7.

[64] It inverts Kant’s argument to suggest that his moral faith is a result of pessimism about the success of humanly willed action (Howard Williams Kant’s political philosophy 244, 253).  Neither is it correct that conclusions based “on rational faith in providence [...] had a much lower epistemological status for Kant than those based on practical (ethical) necessity” (Elisabeth Ellis Provisional politics p220n88): for Kant it is not possible to conceive of practical necessity without his three practical postulates of God, immortality and freedom.

[65] See Ned Lebow’s defence of the “hybrid orders that attempt to blend the best of the old and the new” envisaged by Thucydides, Clausewitz and Morgenthau.  The tragic vision of politics: ethics, interests and orders (Cambridge UP 2003) pp32-33. 

[66] See Raymond Geuss:“in an uncertain, dangerous and unpredictable world there are good general reasons not to embark on radical changes in one’s social formation unless one is forced to it by demonstrable overwhelming necessity.” Outside Ethics (Princeton UP 2005) p12