KANT'S CONCEPT OF INTERNATIONAL LAW*
Published online by Cambridge University Press: 27 January 2011
Modern theorists often use Immanuel Kant's work to defend the normative primacy of human rights and the necessity of institutionally autonomous forms of global governance. However, properly understood, his law of nations describes a loose and noncoercive confederation of republican states. In this way, Kant steers a course between earlier natural lawyers such as Grotius, who defended just-war theory, and visions of a global unitary or federal state. This substantively mundane claim should not obscure a more profound contribution to the science of international law. Kant demonstrates that his concept of law forms part of a logical framework by which to ascertain the necessary institutional characteristics of the international legal order. Specifically, his view is that the international legal order can only take a noncoercive confederated form as its subjects become republican states and that in these circumstances law can exist without a global state. Put another way, Kant argues that if we get state-building right, the law of nations follows.
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1. Hersch Lauterpacht, Sovereignty and Federation in International Law, in International Law: Collected Papers: 3. The Law of Peace 19, 25 (E. Lauterpacht ed., 1977) (1945).
2. Jürgen Habermas, The Divided West (C. Cronin ed. & trans., 2006); and Tom Carson, Perpetual Peace: What Kant Should Have Said, 14 Soc. Theory & Prac. 173–214 (1988).
3. Fernando Tesón, A Philosophy of International Law (1998).
4. Daniele Archibugi, Immanuel Kant, Cosmopolitan Law and Peace, 1 Eur. J. Int'l Rel. 429–456 (1995).
5. Waldron, Pogge, and Wood are skeptical as to whether there is a necessary connection between law and morality for Kant. See Jeremy Waldron, Kant's Legal Positivism, 109 Harv. L. Rev. 1535–1566 (1996); Thomas Pogge, Is Kant's Rechtslehre a “Comprehensive Liberalism?,” in Kant's Metaphysics of Morals 133–158 (Mark Timmons ed., 2002); and Allen Wood, The Final Form of Kant's Practical Philosophy, in Kant's Metaphysics of Morals 1–21 (Mark Timmons ed., 2002). Höffe, Perreau-Saussine, and Ripstein all consider that morality and law are necessarily connected for Kant. See Otfried Höffe, Kant's Cosmopolitan Theory of Law and Peace (A Newton trans., 2006); A. Perreau-Saussine, Immanuel Kant on International Law, in The Philosophy of International Law 53–75 (John Tasioulas & Samantha Beson eds., 2010); Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), at 355–388.
6. See Pauline Kleingeld, Approaching Perpetual Peace: Kant's Defence of a League of States and His Ideal of a World Federation, 12 Eur. J. Phil. 304–325 (2004); and B. Sharon Byrd & Joachim Hruschka, From the State of Nature to the Juridical State of States, 27 Law & Phil. 599–641 (2008).
7. This said, it should be noted that John Rawls does argue for a confederation, and thus it is his work that most closely resembles Kant's in this respect. See John Rawls, The Law of Peoples (2001), at 42–43. However, see Section IV infra, where we discuss the differences between the positions taken by Rawls and by Kant.
8. For a defense of some of Kant's claims, see Patrick Capps, Human Dignity and the Foundations of International Law (2009).
9. Kant mentions St. Pierre and Rousseau (see Immanuel Kant, 8 Gesammelte Schriften 24 (Royal Prussian Academy of Science ed.); and see Kant, Idea for a Universal History with a Cosmopolitan Intent [Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht], in Perpetual Peace and Other Essays (Ted Humphrey trans., 1983), at 35) but does not mention Wolff in his discussion of the law of nations. However, Christian Wolff's Jus Gentium Methodo Scientifica Pertractatum (Joseph Drake trans., 1934) (1749) was an important argument in support of some sort of universal state in Germany at the time. Wolff argues specifically for a civitas maxima, which is translated by Drake to mean, problematically, a “supreme state” (for more on this interpretative difficulty, see Nicholas Onuf, Civitas Maxima: Wolff, Vattel, and Republicanism, 88 Am. J. Int'l L. 280–303 (1994)). Whatever the correct translation, Wolff clearly sees the civitas maxima as an institution with coercive powers (Wolff, Jus Gentium § 13), that issues positive law (id., §§ 11, 25), is institutionally based upon democratic principles (id., § 19), and is administered (somewhat confusingly) by a fictional ruler (id., § 21). Although we have no way of knowing whether Kant was arguing against Wolff when the former rejected a civitas gentium in Perpetual Peace, it seems likely. One scant piece of evidence in support of this claim is from 1847, when Kaltenborn suggests that Wolff's civitas maxima was understood to represent a version of the global state. This suggests that Wolff was understood, at least at this time, as defending a universal state. See Carl von Kaltenborn, Kritik des Völkerrechts (1847), at 70.
10. Kant, 4 Gesammelte Schriften, supra note 9, at 440; and see Kant, The Moral Law [Grundlegung zur Metaphysik der Sitten] (H.J. Paton trans., 1972) (1785), at 101. Along with Paton's translation of Moral Law, we use the following translations: Immanuel Kant, The Metaphysics of Morals [Die Metaphysik der Sitten] (Mary Gregor trans., 1996) (1797); Kant, On the Proverb: That May Be True in Theory, but It Is of no Practical Use [Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht für die Praxis], in Perpetual Peace and Other Essays (Ted Humphrey trans., 1983) (1793); Kant, Idea for a Universal History with a Cosmopolitan Intent [Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht], in Perpetual Peace and Other Essays (Ted Humphrey trans., 1983) (1784); and Kant, Perpetual Peace [Zum ewigen Frieden], in Perpetual Peace and Other Essays (Ted Humphrey trans., 1983) (1795).
11. See Henry Allison, Kant's Theory of Freedom (1990), at 103.
14. Kant, 5 Gesammelte Schriften, supra note 9, at 34; and see Kant, Critique of Practical Reason [Kritik der praktischen Vernunft] (M. Gregor trans., 1997) (1788), at 31.
19. Id. 259 (our translation).
20. Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as a Science of Right (William Hastie trans., 1887), at 84.
22. Kant's argument that law has autonomy because it expresses the omnilateral will of a community is one that is familiar to legal theory and can be said to reflect the autonomy thesis. Postema, who has considered the contours and plausibility of this thesis in detail, writes that for the autonomy thesis, law's “proximate aim and defining task is to supply a framework of practical reasoning designed to unify public political judgment and coordinate social interaction.” See Gerald Postema, Law's Autonomy and Public Practical Reason, in The Autonomy of Law: Essays on Legal Positivism (Robert George ed., 1996), at 80. It achieves this aim by establishing a set of public and general norms that are isolated from the “conflicting interests, principles, and values that stand as obstacles to social cooperation.” Id. This description of the fundamental purposive orientation and structural nature of law is entirely consistent with Kant's view of law understood as an omnilateral will. Waldron explains Kant's reasoning in a similar way. He writes that for an individual to reject the rational necessity of subjecting ourselves to law is, for Kant, “tantamount to turning his back on the idea of our sharing a view about right or justice and implementing it in the name of the community.” See Waldron, supra note 5, at 1564.
26. Id. at 367; 125 (Humphrey trans.).
32. Id. at 312; 89–90 (Gregor trans.).
34. It should be noted that Kant often employs language reminiscent of Hobbes's views of the state of nature. For instance, he describes the state of nature as being characterized as “barbarous freedom” (Kant, 8 Gesammelte Schriften, supra note 9, at 26; and see Kant, Universal History, in Perpetual Peace (Humphrey trans.), supra note 10, at 35) and “a mad freedom” (Id. at 354; and see Kant, Perpetual Peace, in Perpetual Peace (Humphrey trans.), supra note 10, at 115). Elsewhere he directly supports Hobbes's approach (see Kant, 6 Gesammelte Schriften, supra note 9, at 95–97; and see Immanuel Kant, Religion within the Boundaries of Mere Reason [Die Religion innerhalb der Grenzen der blossen Vernunft] (Allen Wood & George di Giovanni trans., 1998) (1793), at 106–109) and often describes a prelegal situation using language reminiscent of Hobbes (See, e.g., Kant, 8 Gesammelte Schriften, supra note 9, at 307–308; and see Kant, On the Proverb, in Perpetual Peace (Humphrey trans.), supra note 10, at 85). Despite this, it seems to us that the technical definition of violence is at the center of his legal theory and is the only way to make sense of many of his central claims.
35. Id. at 289; 71–72 (Humphrey trans.); and see Kant, On the Proverb, in Perpetual Peace (Humphrey trans.), supra note 10, at 71.
36. Id. at 290; 72 (Humphrey trans.).
38. Id. at 255; 44 (Gregor trans.).
39. Id. at 268 and 273–274; 55 and 58–60 (Gregor trans.).
40. Id. at 268; 55 (Gregor trans.).
41. Id. at 255–256; 44–45 (Gregor trans.).
44. Id. at 261; 49 (Gregor trans.).
45. Id. at 312; 89–90 (Gregor trans.).
48. Id. at 297; 78 (Gregor trans.). By “concretized” we mean that what is legally the case in a coordination problem is fixed or settled by the omnilateral will.
51. Id. at 297; 78 (Gregor trans.).
52. Id. at 313; 90 (Gregor trans.).
53. See Ripstein, supra note 5, at 173–174 and 225–230. Ripstein's view is that Kant does not offer a complete argument for the law of nations. Instead Kant focuses only on the need to establish an omnilateral will to establish conclusively the entitlements and rights of states. This is, accordingly, an oversight by Kant. Our response is that Kant thinks that international legislature and executive are unnecessary. After setting out Kant's oversight, Ripstein seems to make an argument that supports our view. On Kant's theory of the state, see also Wolfgang Kersting, Wohlgeordnete Freiheit (1984).
55. Id. at 354; 115 (Humphrey trans.).
56. See Thomas Hobbes, Leviathan (Richard Tuck ed., 1987) (1651), at 90. See also Ross Harrison, Hobbes, Locke and Confusion's Masterpiece (2003), at 92–100.
60. Id. at 346; 116 (Gregor trans.).
66. Id. at 356–357; 117 (Humphrey trans.).
67. For a detailed analysis, see Katrin Flikschuh, Kant's Sovereignty Dilemma: A Contemporary Analysis, 18 J. Pol. Phil. 469–493 (2010).
72. Id. at 354; 125 (Humphrey trans.).
75. Logically, Kant may not be able to rule out the perpetual possibility of the united will of all human beings on the globe replacing all current legal orders. However, Kant's arguments against this form of global law are not merely practical and are rooted in the categorical moral obligations that must be accepted by republican states. See Ludwig, supra note 64, at 176). See infra, Section III.A, where we argue that Kant prefers a confederal form of international law.
81. James Madison, Alexander Hamilton & John Jay, The Federalist Papers (Isaac Kramnick ed., 1987) (1788), at 147.
82. Id. at149.
83. Id. at 148–149. For commentary, see Tara Helfman, The Law of Nations in the Federalist Papers, 23 J. Legal Hist. 107–128 (2002).
89. Id. 351; 113 (Humphrey trans.).
90. Probably the most significant contribution on this point is Michael Doyle, Kant, Liberal Legacies, and Foreign Affairs, 12 Phil. & Pub. Aff. 205–235 (1983); also Michael Doyle, Kant, Liberal Legacies, and Foreign Affairs, Part 2, 12 Phil. & Pub. Aff. 323–353 (1983).
91. This view is supported by Paul Guyer when he writes that within a republican state, “rulers cannot be motivated solely by self-interest and coercion, but must be motivated by respect for morality.” See Paul Guyer, The Crooked Timber of Mankind, in Kant's Idea for a Universal History with a Cosmopolitan Aim (Amelie Oksenberg Rorty & James Schmidt eds., 2009), 129–149 at 133. See also Ripstein, supra note 5, at 229; Flikschuh, supra note 67; and Perreau-Saussine, supra note 5.
93. Kant, 8 Gesammelte Schriften, supra note 9, at 355–356; and see Kant, Perpetual Peace, in Perpetual Peace (Humphrey trans.), supra note 10, at 116. This sentence is interpreted quite differently by Kleingeld. However, as we show, the text surrounding the sentence seem to correspond to our reading. See Kleingeld, supra note 6, at 307–310.
97. This view is reflected strongly in Rawls, Law of Peoples: that for ideal theory, there is no need for strong, coercive forms of global governance. See Rawls, supra note 7, at 36.
100. See Antonio Cassese, Remarks on Scelle's Theory of “Role-Splitting” (dédoublement fonctionnel) in International Law, 1 Eur. J. Int'l Law 210–231 (1990), at 212–213.
101. On this, see Hans Kelsen, Introduction to the Problems of Legal Theory (Stanley Paulson & Bonnie Litschewski-Paulson trans., 1934), at 123.
102. Jeremy Waldron, The Rule of International Law, 30 Harv, J. Law & Pub. Pol'y 15–30 (2006), at 23.
107. Bederman suggests that the Greek amphictyonies have often “represented the most sophisticated complex of treaty relations, approaching even a level of real international organisation.” He considers, however, that “This is unquestionably an extravagant claim.” See David Bederman, International Law in Antiquity (2001), at 170.
108. See Jonathan Hall, International Relations, in 1 The Cambridge History of Greek and Roman Warfare 85–107 (Philip Sabin, Hans van Wees & Michael Whitby eds., 2007), at 100.
109. It seems, however, that the source describing how the Amphictyonic League worked, at least by the fourth century BCE, is likely to be Aeschines, who was actually one of its officials. Without going into the context, he writes:
I reviewed from the beginning the story of the founding of the shrine, and of the first synod of the Amphictyons that was ever held; and I read their oaths, in which the men of ancient times swore that they would raze no city of the Amphictyonic states, nor shut them off from flowing water either in war or in peace; that if anyone should violate this oath, they would march against such an one and raze his cities; and if any one should violate the shrine of the god or be accessory to such violation, or make any plot against the holy places, they would punish him with hand and foot and voice, and all their power. . .. To prove that they were Amphictyonic cities and thus protected by the oaths, I enumerated twelve tribes which shared the shrine: the Thessalians, Boeotians (not the Thebans only), Dorians, Ionians, Perrhaebi, Magnetes, Dolopians, Locrians, Oetaeans, Phthiotians, Malians, and Phocians. And I showed that each of these tribes has an equal vote, the greatest equal to the least: that the delegate from Dorion and Cytinion has equal authority with the Lacedaemonian delegates, for each tribe casts two votes; again, that of the Ionian delegates those from Eretria and Priene have equal authority with those from Athens and the rest in the same way. . .. Now I showed that the motive of this expedition was righteous and just; but I said that the Amphictyonic Council ought to be convened at the temple, receiving protection and freedom to vote, and that those individuals who were originally responsible for the seizure of the shrine ought to be punished not their cities, but the individuals who had plotted and carried out the deed; and that those cities which surrendered the wrongdoers for trial ought to be held guiltless.
Aeschines, On the Embassy (2:115–117).
113. Daniele Archibugi, Models of International Organization in Perpetual Peace Projects, 18 Rev. Int'l Stud. 295–317 (1992).
115. Kleingeld, supra note 6; and see, e.g., Kevin Dodson, Kant's Perpetual Peace: Universal Civil Society or a League of States?, 15 Sw. Phil. Stud. 1–9 (1993).
117. Id. at 354; 115 (Humphrey trans.).
118. Id. at 355–356; 116–117 (Humphrey trans.).
119. Id. at 356; 177 (Humphrey trans.).
120. Id. at 357; 117 (Humphrey trans.).