After stating the transcendental formula of public right in Perpetual Peace Kant states that the formula is not only ethical but also juridical. The reason he makes this claim is that if there are maxims that absolutely have to be kept secret to succeed and which cannot be acknowledged without arousing a necessary and universal opposition then the latter must be based on "the injustice with which it threatens everyone" (Ak. 8: 381). This argument, whilst compressed, has two distinguishable elements. The first element is that a maxim that requires secrecy is, by virtue of that requirement, something that must be unjust. The fact that such secrecy is necessary shows that it could not withstand scrutiny and if it could not it must be in virtue of the opposition that would arise from something that could not withstand being exposed to the critical survey of a public sphere.
This first argument appears problematic in some respects (e.g. what about the need for secret agents in combat?). However it is distinct from the second argument with which Kant has bound it up. The second argument is that a necessary and universal opposition is grounded on a sense of injustice with which others are threatened and that such necessary and universal opposition is closely tied to maxims that require secrecy. This is not to say that there might not be necessary and universal opposition to some maxims that do not require publicity as well but that such necessary and universal opposition, when related to the disclosure of a maxim that had required secrecy manifests the nature of the problem with the maxim in question. In a sense, the second argument, unlike the first, is not based on publicity/secrecy alone but ties it to a general test of opposition.
After making these general comments Kant proceeds with his first example, which is connected to the topic of right within a state. This concerns the question of whether rebellion is a legitimate means for a people to throw off the oppressive power of a tyrant. Assuming that there is such oppression then clearly the people generally are suffering from injury and something that is wrong. Further, the tyrant would have no wrong done to them were they to be overthrown. Despite making these points Kant nonetheless states that it is wrong to seek for right by this means of rebellion and having adopted such a means there would be no ground for complaint on the part of the rebels if they were to be severely punished if they failed.
The basic reason that is used in the argument to show that the path to right cannot follow this strategy of rebellion concerns the ground of what Kant terms "the civil contract" (Ak. 8: 382). The question is whether, in the establishment of a civil contract, there could be reserved the public right to rebel. Should it be possible that the people could retain such a right then the sovereign would not hold the position of head of the state at all since this would rather be held, in some unspecified and unspecifiable sense, by the people instead. What is unspoken in the argument here is something like the following: prior to the civil condition there is not a general will; the establishment of the state secures the general will by means of the constitution of sovereignty; the reservation of a right of the people against the state cannot therefore be a general will right but must rather involve relapse to the state of nature; hence there can be no "right" to rebellion in the nature of a civil contract.
To this argument is added a secondary one where the principle of publicity is used in a different way. The point Kant now makes is that it follows from the appeal to the basis of the civil contract that appeal to a reservation to rebellion cannot be part of the civil condition so it cannot be a public maxim. Hence it can only be a secret one. At this point, however, he introduces a new consideration when stating that public acknowledgement of a maxim of rebellion would make the purpose of the maxim itself impossible. Hence it would have to be kept secret, not merely because, by virtue of the nature of the civil contract in general, it could not be made public, but because it would also be counter-productive to make it public. Thus there are two separate grounds given for why the maxim of rebellion is not one that could be endorsed as a right.
The two reasons for the transcendental formula of public right reappear in the examination of the first example. The suggestion of general opposition (or universal and necessary opposition) emerging to some maxims should they become public has been translated into a counter-productivity test. Conversely the suggestion that if some maxims require secrecy in their nature they are, simply by virtue of that, unjust has been related to the ground of the civil condition. In being translated in this way these considerations have altered their initial appearance. Whilst the suggestion that some maxims, simply by virtue of requiring secrecy, are, by that means, shown to be unjust, appeared insupportable initially, it fares better if understood as a ground for what could possibly be part of the social compact. Conversely, the reference to universal and necessary opposition, if understood simply as a question of counter-productivity, is less stable as a means for assessing right than initially appeared since all that need be meant here is that if others who had more power than oneself heard of certain maxims you would have placed yourself in prudential danger (the meaning of Kant's point that you could hardly complain on suffering severe punishment after making one's maxim of rebellion manifest).
The sovereign ruler evidently possesses great power and can crush rebellion so no maxim of rebellion could be publicly adopted in effect unless this power was already weak as otherwise the power will simply act in self-defence. Conversely, although Kant does not discuss this, it could be that the other circumstance in which maxims of rebellion could be uttered in public without attracting such a response from power as he envisages would be if those who uttered them were in fact not a threat to that power. This would be so if there was no sustained ground of support for those who uttered such views so no danger to the power. In itself this counter-productivity test appears, at least with regard to this example, to tell us nothing intrinsic about justice whilst, on the other hand, the appeal to the grounds of the public condition itself, does tell us something about justice, a point we will have to examine further in relation to the Doctrine of Right.
Gosserie, in his examination of this example, also points to the problem with the counter-productivity argument as being that it simply relies on power relations and provides no ground for assessments of justice. However the other part of the argument is read by Gosserie to turn only on the question of whether the sovereign is a chief who has absolute power. Whilst the point of the argument is certainly to state that if a reservation for rebellion is made part of the civil condition that the sovereign does not possess true power the reason for this concerns the relation between the state of nature, the conditions of a general will and the formation of public right as suggested above. These points will be returned to in future postings but they suggest that Gosserie has misread this part of the argument or, at any rate, not sufficiently attended to the assumptions of the argument when it is related to parallel Kant texts to which I will connect it in later postings.