APPENDIX II

CONCERNING THE HARMONY OF POLITICS WITH MORALS ACCORDING TO THE

TRANSCENDENTAL IDEA OF PUBLIC RIGHT

If I look at public right from the point of view of most professors

of law, and abstract from its _matter_ or its empirical elements,

varying according to the circumstances given in our experience of

individuals in a state or of states among themselves, then there

remains the _form_ of publicity. The possibility of this publicity,

every legal title implies. For without it there could be no justice,

which can only be thought as before the eyes of men; and, without

justice, there would be no right, for, from justice only, right can

come.

This characteristic of publicity must belong to every legal title.

Hence, as, in any particular case that occurs, there is no difficulty

in deciding whether this essential attribute is present or not,

(whether, that is, it is reconcilable with the principles of the

agent or not), it furnishes an easily applied criterion which is to

be found _a priori_ in the reason, so that in the particular case we

can at once recognise the falsity or illegality of a proposed claim

(_praetensio juris_), as it were by an experiment of pure reason.

Having thus, as it were, abstracted from all the empirical elements

contained in the concept of a political and international law, such

as, for instance, the evil tendency in human nature which makes

compulsion necessary, we may give the following proposition as the

_transcendental formula_ of public right:—“All actions relating to

the rights of other men are wrong, if the maxims from which they

follow are inconsistent with publicity.”

This principle must be regarded not merely as ethical, as belonging

to the doctrine of virtue, but also as juridical, referring to the

rights of men. For there is something wrong in a maxim of conduct

which I cannot divulge without at once defeating my purpose, a maxim

which must therefore be kept secret, if it is to succeed, and which

I could not publicly acknowledge without infallibly stirring up the

opposition of everyone. This necessary and universal resistance with

which everyone meets me, a resistance therefore evident _a priori_,

can be due to no other cause than the injustice with which such a

maxim threatens everyone. Further, this testing principle is merely

negative; that is, it serves only as a means by which we may know

when an action is unjust to others. Like axioms, it has a certainty

incapable of demonstration; it is besides easy of application as

appears from the following examples of public right.

1.—=Constitutional Law.= Let us take in the first place the public

law of the state (_jus civitatis_), particularly in its application

to matters within the state. Here a question arises which many think

difficult to answer, but which the transcendental principle of

publicity solves quite readily:—“Is revolution a legitimate means for

a people to adopt, for the purpose of throwing off the oppressive

yoke of a so-called tyrant (_non titulo, sed exercitio talis_)?”

The rights of a nation are violated in a government of this kind,

and no wrong is done to the tyrant in dethroning him. Of this there

is no doubt. None the less, it is in the highest degree wrong of

the subjects to prosecute their rights in this way; and they would

be just as little justified in complaining, if they happened to be

defeated in their attempt and had to endure the severest punishment

in consequence.

A great many reasons for and against both sides of this question

may be given, if we seek to settle it by a dogmatic deduction

of the principles of right. But the transcendental principle

of the publicity of public right can spare itself this diffuse

argumentation. For, according to that principle, the people would

ask themselves, before the civil contract was made, whether they

could venture to publish maxims, proposing insurrection when a

favourable opportunity should present itself. It is quite clear

that if, when a constitution is established, it were made a

condition that force may be exercised against the sovereign under

certain circumstances, the people would be obliged to claim a

lawful authority higher than his. But in that case, the so-called

sovereign would be no longer sovereign: or, if both powers, that of

the sovereign and that of the people, were made a condition of the

constitution of the state, then its establishment (which was the aim

of the people) would be impossible. The wrongfulness of revolution is

quite obvious from the fact that openly to acknowledge maxims which

justify this step would make attainment of the end at which they aim

impossible. We are obliged to keep them secret. But this secrecy

would not be necessary on the part of the head of the state. He may

say quite plainly that the ringleaders of every rebellion will be

punished by death, even although they may hold that it was he who

first transgressed the fundamental law. For, if a ruler is conscious

of possessing irresistible sovereign power (and this must be assumed

in every civil constitution, because a sovereign who has not power to

protect any individual member of the nation against his neighbour

has also not the right to exercise authority over him), then he need

have no fear that making known the maxims which guide him will cause

the defeat of his plans. And it is quite consistent with this view

to hold that, if the people are successful in their insurrection,

the sovereign must return to the rank of a subject, and refrain from

inciting rebellion with a view to regaining his lost sovereignty. At

the same time he need have no fear of being called to account for his

former administration.[153]

[153] “When a king has dethroned himself,” says Locke, (_On Civil

Government_, Ch. XIX. § 239) “and put himself in a state of war

with his people, what shall hinder them from prosecuting him who

is no king, as they would any other man, who has put himself into

a state of war with them?” ... “The legislative being only a

fiduciary power to act for certain ends, there remains still _in

the people a supreme power to remove or alter the legislative_.”

(_Op. cit._, Ch. XIII. § 149.) And again, (_op. cit._, Ch. XI. §

134.) we find the words, “... over whom [_i.e._ society] no body

can have a power to make laws, but by their own consent, and by

authority received from them.” Cf. also Ch. XIX. § 228 _seq._

Hobbes represents the opposite point of view. “How many kings,”

he wrote, (Preface to the _Philosophical Rudiments concerning

Government and Society_) “and those good men too, hath this one

error, that a tyrant king might lawfully be put to death, been

the slaughter of! How many throats hath this false position

cut, that a prince for some causes may by some certain men be

deposed! And what bloodshed hath not this erroneous doctrine

caused, that kings are not superiors to, but administrators for

the multitude!” This “erroneous doctrine” Kant received from

Locke through Rousseau. He advocated, or at least practised

as a citizen, a doctrine of passive obedience to the state. A

free press, he held, offered the only lawful outlet for protest

against tyranny. But, in theory, he was an enemy to absolute

monarchy. [Tr.]

2.—=International Law.= There can be no question of an international

law, except on the assumption of some kind of a law-governed

state of things, the external condition under which any right can

belong to man. For the very idea of international law, as public

right, implies the publication of a universal will determining the

rights and property of each individual nation; and this _status

juridicus_ must spring out of a contract of some sort which may not,

like the contract to which the state owes its origin, be founded

upon compulsory laws, but may be, at the most, the agreement of a

permanent free association such as the federation of the different

states, to which we have alluded above. For, without the control

of law to some extent, to serve as an active bond of union among

different merely natural or moral individuals,—that is to say, in

a state of nature,—there can only be private law. And here we find

a disagreement between morals, regarded as the science of right,

and politics. The criterion, obtained by observing the effect of

publicity on maxims, is just as easily applied, but only when we

understand that this agreement binds the contracting states solely

with the object that peace may be preserved among them, and between

them and other states; in no sense with a view to the acquisition of

new territory or power. The following instances of antinomy occur

between politics and morals, which are given here with the solution

in each case.

_a._ “When either of these states has promised something to another,

(as, for instance, assistance, or a relinquishment of certain

territory, or subsidies and such like), the question may arise

whether, in a case where the safety of the state thus bound depends

on its evading the fulfilment of this promise, it can do so by

maintaining a right to be regarded as a double person:—firstly,

as sovereign and accountable to no one in the state of which that

sovereign power is head; and, secondly, merely as the highest

official in the service of that state, who is obliged to answer to

the state for every action. And the result of this is that the state

is acquitted in its second capacity of any obligation to which it has

committed itself in the first.” But, if a nation or its sovereign

proclaimed these maxims, the natural consequence would be that every

other would flee from it, or unite with other states to oppose such

pretensions. And this is a proof that politics, with all its cunning,

defeats its own ends, if the test of making principles of action

public, which we have indicated, be applied. Hence the maxim we have

quoted must be wrong.

_b._ “If a state which has increased its power to a formidable extent

(_potentia tremenda_) excites anxiety in its neighbours, is it right

to assume that, since it has the means, it will also have the will

to oppress others; and does that give less powerful states a right

to unite and attack the greater nation without any definite cause of

offence?” A state which would here answer openly in the affirmative

would only bring the evil about more surely and speedily. For the

greater power would forestall those smaller nations, and their union

would be but a weak reed of defence against a state which knew how

to apply the maxim, _divide et impera_. This maxim of political

expediency then, when openly acknowledged, necessarily defeats the

end at which it aims, and is therefore wrong.

_c._ “If a smaller state by its geographical position breaks up

the territory of a greater, so as to prevent a unity necessary to

the preservation of that state, is the latter not justified in

subjugating its less powerful neighbour and uniting the territory in

question with its own?” We can easily see that the greater state dare

not publish such a maxim beforehand; for either all smaller states

would without loss of time unite against it, or other powers would

contend for this booty. Hence the impracticability of such a maxim

becomes evident under the light of publicity. And this is a sign

that it is wrong, and that in a very great degree; for, although the

victim of an act of injustice may be of small account, that does not

prevent the injustice done from being very great.

3.—=Cosmopolitan Law.= We may pass over this department of right in

silence, for, owing to its analogy with international law, its maxims

are easily specified and estimated.

* * * * *

In this principle of the incompatibility of the maxims of

international law with their publicity, we have a good indication

of the non-agreement between politics and morals, regarded as a

science of right. Now we require to know under what conditions these

maxims do agree with the law of nations. For we cannot conclude that

the converse holds, and that all maxims which can bear publicity

are therefore just. For anyone who has a decided supremacy has no

need to make any secret about his maxims. The condition of a law of

nations being possible at all is that, in the first place, there

should be a law-governed state of things. If this is not so, there

can be no public right, and all right which we can think of outside

the law-governed state,—that is to say, in the state of nature,—is

mere private right. Now we have seen above that something of the

nature of a federation between nations, for the sole purpose of doing

away with war, is the only rightful condition of things reconcilable

with their individual freedom. Hence the agreement of politics and

morals is only possible in a federative union, a union which is

necessarily given _a priori_, according to the principles of right.

And the lawful basis of all politics can only be the establishment

of this union in its widest possible extent. Apart from this end,

all political sophistry is folly and veiled injustice. Now this sham

politics has a casuistry, not to be excelled in the best Jesuit

school. It has its mental reservation (_reservatio mentalis_): as

in the drawing up of a public treaty in such terms as we can, if we

will, interpret when occasion serves to our advantage; for example,

the distinction between the _status quo_ in fact (_de fait_) and

in right (_de droit_). Secondly, it has its probabilism; when it

pretends to discover evil intentions in another, or makes, the

probability of their possible future ascendency a lawful reason for

bringing about the destruction of other peaceful states. Finally, it

has its philosophical sin (_peccatum philosophicum_, _peccatillum_,

_baggatelle_) which is that of holding it a trifle easily pardoned

that a smaller state should be swallowed up, if this be to the gain

of a nation much more powerful; for such an increase in power is

supposed to tend to the greater prosperity of the whole world.[154]

[154] We can find the voucher for maxims such as these in Herr

Hofrichter Garve’s essay, _On the Connection of Morals with

Politics_, 1788. This worthy scholar confesses at the very

beginning that he is unable to give a satisfactory answer to this

question. But his sanction of such maxims, even when coupled with

the admission that he cannot altogether clear away the arguments

raised against them, seems to be a greater concession in favour

of those who shew considerable inclination to abuse them, than it

might perhaps be wise to admit.

Duplicity gives politics the advantage of using one branch or

the other of morals, just as suits its own ends. The love of our

fellowmen is a duty: so too is respect for their rights. But the

former is only conditional: the latter, on the other hand, an

unconditional, absolutely imperative duty; and anyone who would

give himself up to the sweet consciousness of well-doing must be

first perfectly assured that he has not transgressed its commands.

Politics has no difficulty in agreeing with morals in the first sense

of the term, as ethics, to secure that men should give to superiors

their rights. But when it comes to morals, in its second aspect,

as the science of right before which politics must bow the knee,

the politician finds it prudent to have nothing to do with compacts

and rather to deny all reality to morals in this sense, and reduce

all duty to mere benevolence. Philosophy could easily frustrate

the artifices of a politics like this, which shuns the light of

criticism, by publishing its maxims, if only statesmen would have the

courage to grant philosophers the right to ventilate their opinions.

With this end in view, I propose another principle of public right,

which is at once transcendental and affirmative. Its formula would be

as follows:—“All maxims which require publicity, in order that they

may not fail to attain their end, are in agreement both with right

and politics.”

For, if these maxims can only attain the end at which they aim by

being published, they must be in harmony with the universal end of

mankind, which is happiness; and to be in sympathy with this (to

make the people contented with their lot) is the real business of

politics. Now, if this end should be attainable only by publicity, or

in other words, through the removal of all distrust of the maxims of

politics, these must be in harmony with the right of the people; for

a union of the ends of all is only possible in a harmony with this

right.

I must postpone the further development and discussion of this

principle till another opportunity. That it is a transcendental

formula is quite evident from the fact that all the empirical

conditions of a doctrine of happiness, or the _matter_ of law, are

absent, and that it has regard only to the _form_ of universal

conformity to law.

* * * * *

If it is our duty to realise a state of public right, if at the same

time there are good grounds for hope that this ideal may be realised,

although only by an approximation advancing _ad infinitum_, then

perpetual peace, following hitherto falsely so-called conclusions of

peace, which have been in reality mere cessations of hostilities, is

no mere empty idea. But rather we have here a problem which gradually

works out its own solution and, as the periods in which a given

advance takes place towards the realisation of the ideal of perpetual

peace will, we hope, become with the passing of time shorter and

shorter, we must approach ever nearer to this goal.

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