Wednesday, 11 August 2010

Ripstein and International Right

I've been reading Arthur Ripstein's recently published book Force and Freedom: Kant's Legal and Political Philosophy. The work is a commentary on Kant's Doctrine of Right though it is written in a style that is broadly reconstructive rather than being textually focused. This has advantages and disadvantages in the responses to particular topics and I'll be reviewing it elsewhere at a later date. However, for the purposes of this blog, I thought I would set out some thoughts on Ripstein's brief discussion of international right, which occurs toward the end of Chapter 7 of his book.

In this discussion Ripstein confronts the question of why the examination of the state of nature between states structurally differs from the state of nature between individuals. This difference is most apparent in Kant's failure to argue for a world state. The key element in Ripstein's assessment of Kant's failure to argue for a world state is a rejection of the view that this failure is grounded on some kind of empirical consideration. Rather than this being the case, suggests Ripstein, it is instead the case that Kant rejects the world state on normative grounds.

The state of nature between states parallels that between individuals in the sense that there is a need for some authority to determine the resolution of disputes. However, whereas Ripstein identifies three distinct arguments in the case of the state of nature between individuals aiming to show the need to leave the state of nature, he only identifies one argument in relation to the state of nature between states. The difference that emerges due to the paucity of argument in relation to the state of nature between states results, Ripstein points out, in the absence of discussion of legislative and executive international bodies. Only one kind of international body emerges, the one that is structurally parallel to the court at the national level.

To unpack Ripstein's account of international right requires, however, not merely reading his view of the Doctrine of Right, but, also, his account of Perpetual Peace. At Ak. 8: 356, during the discussion of the 2nd definitive article of perpetual peace, Kant argues for a pacific league. In arguing for this idea Kant makes clear that the pacific league only aims at "preserving and securing" the freedom of a state and of the states in league with it. What Kant rules out here  is "public laws and coercion" as part of this league. In ruling out "public laws and coercion" Kant clearly does prevent the pacific league from having a legislature and the disbarring of coercion also prevents the creation of the league being seen as parallel to the creation of the state of right itself. However, Kant next adds to this point the view that the focal point for the creation of the pacific league will be the formation of republics which will tend to band  together, thus indicating that this view of the pacific league is of a piece with a "republican peace" hypothesis. See also my earlier posting for reflections on the peculiar structure of the argument of the 2nd definitive article.

Ripstein points to two differences between the state and private persons. The first difference is that the state does not have external objects of choice or, otherwise put, it does not "acquire" its territory. It is, in some sense, necessarily in possession of it or its territory is an analogue to the body of the person. Due to this point the need to establish the ground of property, required to establish the state of right, does not apply to the pacific league. This is used by Ripstein to rule out part of the requirement for public laws and coercion under them.

The second difference between the state and the situation of private persons, according to Ripstein, is that the state is a public rightful condition. It can only act in a public way so the basis of conflict between states can only be defensive whilst private persons can act in private ways and hence in ways towards each other that could be aggressive. This second argument is not provided by Kant in an explicit form and is meant to show the specific rationale for why the pacific league needs no coercive power.

At this point Ripstein's analysis articulates the point of the republican peace hypothesis as an a priori claim about the form of republican governance as the ideal of public right itself. The problem is that the imperfect realisation of this in existent states, an imperfect realisation that ensures that all states are at best partially despotic and at worst barbaric, ensures that in relations between states there are grounds for fearing actions of others. This point mitigates against the assurance of peace that would attach to republican states were such completely realised.

Ripstein's analysis, like the one I presented sometime ago, shows that the 2nd definitive article effectively dissolves into the 1st. After treating the 2nd definitive article, Ripstein moves to the discussion of the "congress of states" argued for in the Doctrine of Right. The "congress" is specifically related to a public right of nations and the resolution of disputes between states carried out by it is explicitly described by Kant as akin to a court. This model fits Ripstein's general assessment of international right and rules out a sovereign authority. However, one of the texts Ripstein does not consider is the piece on theory and practice where Kant provided a model of international right that is less congenial to Ripstein's account. In this earlier text Kant referred to "a right of nations, based on public laws accompanied by power to which each state would have to submit" (Ak. 8: 312) with the explicit analogy to the state of nature between individuals invoked as a basis. In this text, at least at this point, Kant considers a model of international right that does not fit Ripstein's model but which suggests instead a need for public laws and coercion. The earlier text perhaps corresponds better to a situation in which the model of republics is not perfectly realised and hence the overcoming of the international state of nature is envisaged as requiring their supersession. This also suggests that it is perhaps less evident than Ripstein thinks that Kant has a clear normative argument against the world state.

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