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.