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.

Cosmopolitanism, Coercion and Immigration

As I mentioned in yesterday's posting there has recently appeared a response from Tim Waligore to an earlier posting on this blog. Yesterday I tackled one aspect of Tim's response which concerned the reference I made earlier to the notion of the "social contract" and whether I could simply move from the general account of coercion in the "Introduction" to the Doctrine of Right to the discussion of the social contract that is specifically discussed under the heading of Public Right. However, the more important point Tim raised against my earlier published position concerned a cosmopolitan objection to the reasoning I gave when prescinding from the detail of an argument concerning immigration controls in the journal Political Theory.


First it's necessary to place this discussion back in context. The argument in Political Theory to which I was responding concerned the question of whether immigration controls are coercive. One of the parties to the debate argued that they are coercive whilst the other suggested that they are not but merely acts of "prevention". Basically the distinction is that some acts are ones that you can be prevented from doing without it following that you have been coerced. So if I refuse someone's request to marry me I haven't coerced them but I have prevented them from carrying something out. Similarly it may be that preventing someone from coming to a country by erecting an immigration barrier does stop them from carrying out their purpose without it following that this means that they have been coerced. Now, the reason I proceeded to prescind from the specifics of the debate was because it struck me that both parties to it effectively subscribed to a view of politics that was broadly informed by the views of Robert Nozick. On those views acts of coercion require some special justification as the nature of "right" is not defined in terms of coercion but rather more loosely by reference to something understood as "autonomy" where this notion appears to have some vague connection to the Kantian term but which Kant does not use in political philosophy. In response I was suggesting that a Kantian view is quite different since, on this view, right and authorization to use coercion are intimately connected, Kant even writing at one point that they "mean one and the same thing" (Ak. 6: 232). So my decision to prescind from the detail of the argument concerning immigration controls was based on an attempt to reach a more fundamental question of political philosophy.


However Tim's reply to my earlier posting raises a question which suggests that the response I made to the debate in Political Theory concealed a problem, a problem that, effectively prevents my being able, as easily as I thought in any case, from being able to prescind from the debate over immigration controls. There are two strands to Tim's challenge. The first concerns the way the "social contract" is referred to when Kant mentions it in his discussion of Private Right. This occurs towards the conclusion of Kant's discussion of acquisition when he writes that the problem of its justification requires reference to a notion of original acquisition before going on to write: "even if it is solved through the original contract, such acquisition will always remain only provisional unless this contract extends to the entire human race" (Ak. 6: 266).


This points to the first rationale Kant gives for a connection between the social contract and cosmopolitan considerations. To it can be added a second one to which Tim also refers. This is the very beginning of the discussion of Public Right where we find:

Since the earth's surface is not unlimited but closed, the concepts of the right of a state and of a right of nations lead inevitably to the idea of a right for a state of nations (ius gentium) or cosmopolitan right (ius cosmopoliticum). So if the principle of outer freedom limited by law is lacking in any one of these three possible forms of rightful condition, the framework of all the others is unavoidably undermined and must finally collapse. (Ak. 6: 311)

Kant's concluding comment here is fairly drastic but clearly indicates the importance of the connection he felt there was between the different elements of right. Cosmopolitan right and international right are here distinguished though the difference between them is not clear at this point of the text.


Tim's general point is that the will of a given state is, by reference to other states, still a specific will, the reasoning that Kant uses to suggest that the relationship between states constitutes a state of nature. In this situation the existent state appears to those not included within its boundaries simply as a power so that whilst the state needs no specific justification for coercion in regard to its citizens it does require some justification with regard to non-citizens who are not included in the will that was established when the state was set up. Further, to go back to the specifics of the question concerning immigration controls, there needs something specific to be shown concerning what it is that requires non-citizens to be limited and regulated in terms of their entry to the state, something that specifically relates to them as non-citizens concerning why they should be limited in this way.


A lot of separate issues are involved here. Firstly, Tim is quite right to bring out the problem of provisionality with regard to states prior to establishment of a cosmopolitan contract. This is the subject of the monograph of Elizabeth Ellis to which I have given some response elsewhere. It does importantly complicate questions of state of nature theory if the relationship between states is thought of as such a state of nature although it has to be added that this view of the existent state of play between nations is not held by, for example, Habermas who instead insists that the present relations involve a form of law that shows the state of nature has, to at least some extent, been superseded. From a strict Kantian point of view, however, Tim is right to draw attention to this point.


The second point is that the connection drawn between the right of the state, international right and cosmopolitan right at the beginning of the discussion of public right does not collapse the distinctions between them. Kant indicates an important relationship between them but he does not conflate them with each other. So there is some sense to right within the state, regardless of international right and cosmopolitan right although this sense is, as Ellis and Tim both correctly argue, provisional. The scope of such provisionality hence has to be worked through which I attempted in the article I wrote in response to Ellis.


However these points are not the core of the issue. The core is rather Tim's conclusion that we cannot abjure the provision of justification of coercive measures with regard to the non-citizens who wish to enter the domain of the state. Now, within the argument of the Doctrine of Right, Kant does not address this question. Kant only looks at the reasons why colonial settlement is problematic arguing for a need for specific contracts and against force. There is no specific discussion concerning what is required for those who would wish to settle within the domain of an existent state.


However surely the Kantian response is that the existent state has, by means of the constitutional measures it has set in place, defined the scope of agreed settlement within its borders? This would not merely include the need for new settlers to adhere to the laws already given but could well incorporate considerations the citizens of the state have made to the effect that they wish to decide whether to admit new citizens. This does not have to be based, as it so often is for existent states today, on grounds of ethnicity or on implied reference to considerations of "welfare". But part of the point of an established constitution is surely one of decision that the sovereign power can determine the basis of citizenship. After all, it is normal to be able to strip citizenship from someone if they perform certain acts deemed treasonous so, similarly, there could be grounds for determining whether or not anyone is allowed to begin life as a citizen. It is true that all this is, in the strict sense, provisional but no more so than any other ground of right. This doesn't prevent it from being the case that the non-citizen needs to be given justifications for why application for citizenship is turned down but the fact that there needs to be a process of such application would itself be a settled law of the land, like any law and as such the process would be in no more need of special justification than any other and in this sense I would continue to reject the view I took to be underlying the debate that took place in Political Theory.

The Moral Politician

The next stage of Kant's discussion of the conflict between morals and politics in the appendix of Perpetual Peace is to invoke the idea of the "moral politician". Such a figure has as his mission the connection of principles of prudence with morals so that they can best coexist. So this person will think about the defects in constitutions in relation to the principles of natural right even though the latter are based fundamentally in ideas of reason. However, the principles of prudence will come in by reference to the need to keep maintained the bonds of civil and cosmopolitan union that already exist. Given this prudential disposition it would follow that this politician does not seek immediate remedy for all the defects found. This clearly reverts back again to the rationale for the division of the preliminary articles to the effect that not all principles that can be shown to be clearly right are, by virtue of that alone, to be the ground of political action in the interim.

An indication of the application of this notion of moral politicians follows. This concerns the fact that a state could have a republican mode of government despite the fact that its form of sovereignty (to use the distinctions made in the third definitive article) is despotic. The mismatch between the two could justifiably continue, suggests Kant, until the conception of the rule of law becomes popularly understood. In relation to the rights of states relative to each other this further supports the claim, made in the fifth preliminary article, that no state has a right to claim that another state change its constitution. However the basis of this specific claim is now tied to a condition which is that such a claim has no basis in right if enforcement of it would be prudentially bad (i.e. would lead to the collapse of the state).

This discussion next leads to a further footnote on permissive laws. In this footnote Kant now describes permissive laws as ones that allow a situation of public right that is afflicted with injustice to continue "until everything has either of itself become ripe for a complete overthrow or has been made almost ripe by peaceful means" (Ak. 8: 373n). Revolutions are subsequently referred to as like a "call of nature" that indicate a need for change.

The permissive law here refers us to the ripening of conditions for right. In so doing it adds a rightful point to the prudential one concerning the question of changing the constitution of other states. There is a prudential ban on altering externally someone's constitution if this would threaten the existence of their state as such. To it we now have added a condition of right in terms of allowing the other state to reach its own point of need for change whether this will arise for them either violently or peacefully. However, what is not addressed in these points is the claim made earlier in the 3rd definitive article that some states of themselves are more likely than others to produce war (republican peace thesis). Given this claim there are grounds in right to think that changes in constitutions of states would be beneficial and it is unclear how to reconcile this with the permissive law now set out that gives a ground in right that underpins the fifth preliminary article.

The Right of Nations and Commerce

After giving the example of how self-seeking inclinations in a sense support the notion of a republican constitution Kant moves on, in Perpetual Peace, to the question of how the right of nations is supported by an appeal to "nature". The point that he first makes concerning the right of nations is that it clearly presupposes that nations are independent of each other and that such independence of nations is, in a sense, a condition of war between the states. The only basis of overcoming such a state of war between states is, as asserted earlier in the discussion of the second definitive article, the establishment of a federative union between states.

When discussing the second definitive article Kant arguably gave no clear reason why there should not be a world state. Now, Kant responds to the problem of why states should remain independent of each other, given that this involves a state of war between states, by discussing a specific danger that arises from overcoming such a condition. This is that fusion of states together into one larger state could simply arise from one state overpowering the others and turning into a universal state by this means. However, in discussing this possibility, Kant argues that such a universal "monarchy" (as he terms it) leads to a specific problem. This is that as laws gain in range they decline in vigour. In other words, as a state expands its range of operation it becomes more difficult for the laws in question to be based on a general agreement and to capture true consent. This argument is similar to the ones used by Rousseau to argue for smaller polities (and there is precedent for it also in Plato) but is not one that arises from concern with the specificities of international right. Nor is it the case that such an argument applies to a world state that has arisen from federative unions moving by their own momentum towards a general universal state.

That Kant's concern here is primarily with conquest is made further clear when he goes on to talk of every head of state having the ambition of creating peace by means of becoming the ruler of the world. In response to this danger Kant makes his second appeal to the means of nature. Now he refers to how the ambition of heads of state to create a universal monarchy by means of conquest is undercut by two central differences within the human race. These are differences of language and religion (though Kant here inserts a note to the effect that the latter are not really differences of rational religion but of dogmatic creeds). These differences promote many bases for war between peoples thus creating an obstacle to the ambition of heads of states. However, despite making the appeal to "nature" on these grounds, Kant goes on to point out that increase of culture leads to an agreement on principles by promoting a kind of equilibrium between them (shades here perhaps of Rawls' notion of "overlapping consensus"?).

Not only does this general agreement in principles itself undermine the differences Kant points to as undercutting the ambition of heads of states but there is a further uniting factor that is mentioned now. This is what Kant terms the "spirit of commerce" (Ak. 8: 368). The point Kant makes about this is that it cannot well coexist with war and that the power of money may be the most reliable of all powers for the promotion of peace. This argument in a sense follows from the earlier argument concerning the right of the state since there we found Kant appealing to the need for security of holdings (property) as a natural ground for the formation of the state. Similarly, the need for security of trade between partners in different nations grounds a basis for resistance to war amongst traders. The need for such security of trade promotes mediation between warring partners just as if there existed a permanent league to promote peace. So there is a virtual league that emerges automatically from the relations between states which may partially explain Kant's more sanguine attitude to the formation of a world state. It does however also point us back, in a sense not clearly undertaken anywhere directly by Kant, to the need to think further about the conditions for just and fair trade, a point discussed in previous postings.

Peace and the Civil Condition

Prior to setting out the definitive articles of perpetual peace Kant first provides a bridge towards them in the form of a short paragraph and appended footnote. This opens the second section of Perpetual Peace as the discussion of the division of the preliminary articles and footnote on permissive laws closed the first part.

In the paragraph Kant points out that a condition of peace is not a natural condition as the state of nature is rather characterised by a constant possibility of war. This is a central point as, on the basis of making it, Kant argues that peace is something that has to be established or, in other words, it is an institution. The basis of it is something more than mere cessation of hostility, as Kant opened the whole discussion of perpetual peace by saying. To assure peace is to take away the relation to another of being an actual or potential enemy. Hence peace is a condition in which others no longer possess this status but are rather, in some sense, fellows with oneself.

The implication of this point is again drawn out in the footnote where Kant argues that actual wrong does not have to befall me for it to be the case that I can rightly respond to someone with hostility. Or, at any rate, this is the case in the state of nature. In a state of civil law there does have to be some wrong done to me for the relation of hostility to be justified, but this is not so in the state of nature.The civil condition is one in which there is a superior power between myself and others and the existence of this superior power ensures I have assurance that I am safe from others, an assurance that is the basis for ceasing to view them as enemies. By contrast, in a state of nature, where such superior power does not exist then there is only a relation to others in a general sense of hostility. Due to this there is the basis for coercion towards the creation of a civil condition.

Now the key point that emerges at this stage of the argument is that there are 3 ways in which a civil constitution can be specified:

1) with regard to the citizens of a state. This is the usual sense meant and the predominant concern of political theory. It shapes all the initial discussion in the Doctrine of Right.

2) with regard to the right of nations, that is, states in relation to each other. This is the central basis of international right. So it follows from the discussion to this point that there are institutional conditions for a civil peace between states. This is a central point that shows the ground for concern with international affairs in Kant's political theory.

3) with regard to the citizens of the world. Here Kant includes both individuals and states together in a general condition of a "universal state of mankind" (Ak. 8: 349). This is what he also terms cosmopolitan right. So the difference between international right and cosmopolitan right is that the former concerns the relations between states and the establishment of peace in relation to them whilst cosmopolitan right, by distinction, concerns the relations of individuals on a world scale in addition to the relations between states. It follows from the fact that Kant admits of the notion of cosmopolitan right that not everything of significance internationally concerns the regulation of inter-state relations alone but that there is still a ground for concern for the fate of individuals. The inclusion of this notion also suggests however that, just as states stand in a state of nature relation to each other on Kant's account, so, individual members of distinct states are in this relation with regard to individual members of other states.

Report on UK Kant Society Conference 2009

Having just returned from attending this event, held this year at Lancaster University, it struck me as worthwhile to do a posting on the major themes that emerged from it and to note some of the ways this seems significant in relation to contemporary Kantian philosophy. Before moving on to an account of these general points I should mention three factors that seriously impressed me. The first was the number and quality of graduate papers this year. As occurred earlier this year when I co-organized the annual conference of the British Society for the History of Philosophy, the graduate contributions were of very high quality. As with the BSHP, graduates who attended demonstrated that there are good grounds for hope with regard to the continuation of philosophical research of serious value.

The second factor was the surprisingly high number of US contributors this year. Like the first factor this is a welcome development, revealing as it does the increasingly international nature of philosophical work. The third factor was the larger number of women philosophers, a development, like the first two, promising a more creative future for philosophical research.

The conference theme this year was "Kant: morality and society" and the organizer, Garrath Williams, is to be commended for bringing together a wide range of papers on the theme in question, many of great interest. The three plenary papers were certainly very different in both approach and focus. The first, by Stephen Darwall, covered the question of an alleged "gap" in Kant's derivation of the formula of universal law, treating this gap as appearing in both the first and second parts of the Groundwork but presenting his own theory of the need for a "second-person" standpoint as indicating a way of amending the derivation so that it succeed. Somewhat surprisingly, given his theme, Darwall did not refer to earlier work on this question such as appears in the books of Bruce Aune and Samuel Kerstein. An additional problem with Darwall's treatment of the alleged "gap" is that it appears to rest on the presumption that such strange creatures as principled egoists and act consequentialists not only exist but, in existing, have to be committed to the view that others should adopt the same principles! Despite these problems the paper was a thoughtful contribution and certainly suggests reasons both for reading his new book on the second personal standpoint in more detail and treating it to a more extended response.

The second plenary paper was by Arthur Ripstein and concerned the theory, adopted by John Rawls from H.L.A. Hart, that we need to distinguish between laws/rules and their "benefits". This theory, whose remoter origin resides in utilitarian responses to "rule-fetishism" has an inherently de-bunking effect on the understanding of rules, and was opposed point by point by Ripstein to a Kantian theory. The interesting point about Ripstein's treatment of Kantian theory was that he reprised the central motifs of the account of "private right" in the Doctrine of Right and showed in the process that it was with regard particularly to these elements that the distinction between rules and their "benefits" was especially prominent. Ripstein's highly impressive paper brought out the need, by contrast to this theory, for Kantians to emphasize a view of rules that did not regard the "benefits" of them as something intrinsically separable from them. Ripstein has elsewhere extended his treatment of the Doctrine of Right and this account, like that of Darwall, bears much more extended investigation.

The final plenary speech, by Tamar Schapiro, contrasted markedly with the earlier two in being a more general paper that was less strictly focused directly on Kantian themes. Schapiro's paper concerned a distinction between two pictures of the relationship between passion and action. On one picture (argued to be shared by both empiricists and rationalists) the agent is viewed as unitary and passions and reasons treated as part of a continuum, not different in principle. As opposed to this, the other view, identified as Kantian, treats passions and reasons as different in kind and passions as generally adopted in the light of reasons. The effect of this second picture, Schapiro argued, was a bipartite, not a unitary, view of agency. Debate concerning this paper centred on arguments as to whether Kant is really committed to such a bipartite picture of agency with many claiming that this is not so though wishing to maintain the division between passions and reasons that Schapiro drew. The discussion subsequent to this paper was in many respects more engaging than the paper itself but also brought out clearly the questions posed for philosophy of action by Kantian practical philosophy.

The parallel sessions divided between those at which faculty members spoke and those devoted to graduate students. Topics discussed in them included Kant's view of suicide (taken to be unsustainable in itself but revealing of some key elements of his general view), the relationship of duties to humans and duties to animals, the relationship between Kantian ethics and aesthetics, the nature of Kantian respect, further reflections on the derivation of the formula of universal law, two papers on aspects of the doctrine of right, and, perhaps most impressively, a paper on provisional duty by Heather Roff. In the only paper specifically focused on the question of international right Roff demonstrated in detail both that all duties at this level are provisional and that the question of their provisionality raises important questions for Kant's whole Doctrine of Right. This paper was perhaps the single most inspiring one delivered at the conference and indicative of the centrality of the area of international right for the study of the whole of Kant's practical philosophy.

For domestic reasons I had to miss the final day of the conference and so this report is not complete. However, from the events I attended what becomes clear is a division between two general types of work being undertaken on Kantian practical philosophy. On the one hand are papers which are either highly general in feel (such as the plenary by Schapiro) or specifically focused on clarifying questions in Kant's critique of morality, especially as found in the Groundwork. The characteristics of these papers is that they are engaged in foundational questions, whether of moral philosophy, moral psychology or philosophy of action. On the other hand are papers either focused on the doctrine of right directly or on questions that require a concern with Kantian casuistry or with the implications of the general practical philosophy. The latter sort of papers are the sort that are more capable of speaking to other non-Kantian philosophers or to a broader public concerned with moral and political questions though the former kind remain significant in requiring us constantly to return to the basis of Kantian views.

Non-Intervention in Other States

The 5th preliminary article of Perpetual Peace is one of the most controversial elements of it. It has been subjected to repeated correction, re-interpretation and "defence" of a sort that is not necessarily helpful. The question about the basis, role and limits of intervention in the affairs of other states has taken on new life in IR theory since at least the Balkan Wars of the 1990s. The NATO campaign in Kosovo, the two Gulf Wars, the war in Afghanistan, the UK intervention in Sierra Leone, the US interventions in Somalia,the Russo-Georgian war last summer, all involved claims concerning the rightful basis of intervention. Nor has the question of it only been invoked in cases where intervention has taken place but also in ones where it hasn't but perhaps should have. The most recent situation of this kind was in Rwanda though the key historical example was the Spanish Civil War. There is also some argument to this effect running at present in the wake of the coup in Honduras.

Given the weight of the question it clearly cannot be settled merely in a posting concerning the fifth preliminary article of Perpetual Peace but will require considerable attention, both in relation to the working out of general principles and also in attending to the numerous complexities of given particular examples. The fifth article of Perpetual Peace is controversial in its interpretation precisely due to its connection with such larger issues.

In looking at this fifth preliminary article it is useful also to look at the context of Kant's writing of the whole work. Perpetual Peace was published in 1795, the same year in which Prussia withdrew from a coalition against revolutionary France and concluded a separate peace with the republic. It is against the backdrop of the revolutionary wars that Kant frames his fifth preliminary article. The article states that: "No state shall forcibly interfere in the constitution and government of another state" (Ak. 8: 346). The principle simply as stated thus indicates that there is no ground for alteration of the political affairs of another state. However, despite the fact that the 5th article seems to assert something fairly authoritative, whatever one's view of the principle in question, reading Kant's discussion of the article suggests instantly that in fact things are complicated.

Kant goes on to specify that things are different if the state in question has already split into two with two separate elements laying claim to the whole. It is different, that is, in cases where a civil war has sundered the pre-existent state. Since this was clearly the case with the Spanish Civil War (and is one way in which the break-up of Yugoslavia could be described) it follows that in such a case Kant's preliminary article does not apply. The situation in which such civil war is taking place is, Kant declares, "anarchy" and so it is not interference for a foreign state to give assistance to one of the warring parties.

Having introduced this mitigation of the original principle Kant proceeds to mitigate the mitigation. The next point is that for the foreign state to be able to intervene in a way that is not interference requires that the internal conflict be "critical" as otherwise such intervention would make the autonomy of all states insecure. The judgment in question might well be thought to have been the basis of the coalition formed against Saddam Hussein's Iraq in the 1st Gulf War since Kuwait was here forcibly incorporated into a neighbouring state despite not itself being internally disrupted. However whilst this mitigation of the mitigation might initially appear helpful it clearly introduces an important problem in its wake. When the foreign state is making a decision concerning such intervention without wishing to be accused of "interference" how is it to decide whether or not the situation is "critical" enough to justify it? No criteria are given in Kant's discussion of the 5th preliminary article. As we will see subsequently the basic principle of the 5th preliminary article is also not evidently in harmony with other elements of Kant's discussion.

International Right and Pre-Emptive Action

The second example of international right that Kant discusses in regard to publicity concerns pre-emption. The basic case, like with the example of promising, concerns the adoption of a maxim that is said to be impossible to sustain in the light of publicity.

The example is that there is a neighbouring power that has grown to such a size that should it take action against the countries surrounding it then it would easily defeat any one of them in a one-to-one combat. Given that this is so the question arises whether these surrounding smaller states can act on the assumption that they are in danger and thus pre-emptively join together in an alliance against the larger state even though the larger state has not as yet injured them? The example of pre-emption being considered is peculiar to an audience in the twenty-first century as to us the question appears to arise not with regard to smaller countries combining together against a larger one but rather with regard to larger countries asserting that there are good reasons for less powerful nations to be treated as a hazard. 

In this case when the maxim of the smaller states' pre-emptive alliance is put to the test of publicity Kant makes clear that the test would be one where the maxim underlying their alliance was affirmatively made known. In describing the case in this way Kant is not diverging from his treatment of the promising example as in that case also it was the fact that the maxim of the head of state was divulged that led to the counter-productive result. Similarly, in the case of the pre-emptive alliance, it is the making known the maxim underlying it that leads again to a counter-productive result. Should the maxim underlying the alliance be made known then the greater power will act first and will also, as a greater power, have means to break the alliance.

So the adoption of the maxim by the smaller states will prove counter-productive and it is the fact that it will that leads it to being described by Kant as unjust. The failure to meet the standard of publicity is indicated again to reside in the fact that the publication of the maxim will ensure that acting in accordance with it will defeat the purpose enunciated in it. It still appears somewhat curious to describe this as an indication that the maxim is "unjust" unless the implied suggestion is that there is some kind of equivalence between publicity and justice. If so, what kind of equivalence is this? The nature of the relation between publicity and justice is still somewhat elusive and will have to be returned to in future postings.

International Right and Promising

After discussing the question of the "right" to rebellion in the context of the right of a state Kant turns next in Perpetual Peace to examples that concern the right of nations. In order to discuss this area at all it is necessary to work in accord with a "presupposition" of a rightful condition and the nature of this confirms the reading given in the previous posting of Kant's account of the problems with a "right" of rebellion. Here Kant points out that public right contains "in its very concept the publication of a general will". Since this is the claim that Kant makes here it surely follows that an implied appeal to this concept was made in the earlier discussion of rebellion.

The juridical state is based for Kant on a pact but the difference between the one that establishes a state and that which would hold between states is demarcated as being that the former is based on coercive laws whilst the latter may be only a condition of continuing free association. It is the need for some kind of pact that takes us beyond the condition of the state of nature. The criterion of the doctrine of right is appealed to as a general basis of morals that politics should be governed by and the nature of this is taken to follow from the principle of publicity in some general sense.

After making these points in order to set out the notion of a right of nations Kant next discusses three examples, which we will treat to a posting each. The first example treats of promising in regard to the right of nations. One state has promised the other something and the promisor now wishes to be freed from this promise due to the assumption that fulfilling the promise will compromise the welfare of the promisor. The attempt to be released from the promise is predicated on a distinction alleged to exist between two elements of the personality of the state. On the one hand, there is the sovereign who is accountable to no further power within the state. On the other hand, there is the supreme official of the state, whose decisions are open to inspection within the state. The suggestion then would be that the latter can be released from the promise due to pressure from within the state so to do. Such a distinction, which would allow for promise-breaking, is then put to the test of publicity and the maxim is shown to fall foul of the counter-productivity test on the grounds that if it were to be made public as the basis of actions no other state would ever ally with the promise-breaking one.

The basic counter-productivity test here is clearly revealed in this case to be one that tests the purposes of adoption of a maxim. This can be seen if we compare the treatment of promising in international right to that given in general moral philosophy in the Groundwork. The examples in the Groundwork are given in the second part of the work and are iterated twice. The first set of examples occurs shortly after the categorical imperative is introduced for the first time in Groundwork II and after which it has been refined to refer to universal laws of nature. In the example of promising that follows this refinement Kant mentions the promising example as one that arises in relation to personal welfare as someone needs to borrow money and has to promise to pay it back. The difficulty in this case is that paying the money back at the time required is not within the promisor's means. So it follows that the maxim would have to be one of making a promise you know you can't keep and that, when universalized as a law of nature, turns out to be inconsistent with itself as it contradicts itself. The point of the contradiction is one of self-frustration or counter-productivity since the generalization of the maxim would abolish the very practice of promising. So the first treatment of the maxim in Groundwork II indicates the problem to be one that concerns the institution of promising. The acts of promising are not isolated but belong to a general practice and it is this practice that is endangered when a false promise is made.

The second set of examples in Groundwork II is in regard to the formula of humanity. This formula explicitly highlights the relationship between means and ends that was only implied in the universal law of nature formula. In bringing this distinction in Kant here connects it to using others as ends-in-themselves rather than only as means for ourselves. The discussion of false promising at this point hence picks out an immediate problem with adoption of a maxim permitting it since it would involve treating those who one makes a false promise to as only a means. The reason why it involves treating the other in this way is that the other could not agree to being responded to in the way that the false promising maxim would allow. 

The treatment of false promising in regard to the humanity formula requires us to look at the situation from the other's perspective and to see that if we saw things from their side we would not act as we are thinking of acting. The discussion of false promising in regard to the right of nations involves an appeal to the view of other nations in the same way but, unlike the formula of humanity discussion, it is an appeal to all others that is here made. So the discussion of false promising in the context of international right does not merely consider the parties involved but rather, like the discussion in the universal law of nature, considers a general effect, a practice. It is the practice that would lead to a counter-productive effect since the false promisor acts in such a way that the generalization of their maxim would render the adoption of the maxim itself impossible as the practice that he is operating within would cease to be operable. So counter-productivity is part of the discussion in the case of international right precisely in view of the fact that international right is treated as part of a general practice of right. The false promisor would be acting in a way that would put them beyond the minimal agreement that creates a federation and would thus be acting as an "outlaw state".