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.

Commerce, Communication and Hospitality

In an article published in Politics and Ethics Review on the subject of colonialism and hospitality Peter Niesen makes some key claims concerning the interpretation of the meaning of hospitality in Kantian theory. In the discussion of the 3rd definitive article for perpetual peace where Kant limits cosmopolitan right to conditions of universal hospitality Niesen focuses specifically on a key aspect. Kant refers in this article on the right to be a guest and specifies this as the right "to present oneself for society" (Ak. 8: 358). Subsequently this presentation of oneself is further determined as "the conditions which make it possible to seek commerce with the old inhabitants" (Ak. 8: 358).

The seeking of commerce is clearly not equivalent to its attainment so Kant does not here speak of a right to commerce but only of a right to be able to attain it. Niesen understands this as "a communicative right", that is, a right to make "communicative offers". Somewhat oddly and partly by associating this with statements Kant makes at the conclusion of the Doctrine of Virtue concerning social intercourse (Ak. 6: 473) this communicative right is presented by Niesen in terms of a general right to free speech on Kant's part. More persuasive evidence for a connection between the statement in Perpetual Peace and a view of free speech rights are the references Niesen points to elsewhere in Kant's works. For example, in the introduction to the Doctrine of Right, in the context of discussing the "one innate right" to freedom Kant derives from it some authorizations which, he says, "are not really distinct from it" (Ak. 6: 237). Included amongst these are "such things as merely communicating his thoughts to them" (Ak. 6: 238).

As part of his concluding remarks concerning the relation of theory and practice in the right of a state Kant also arrives at the key importance of making publicly known one's opinions. Here Kant explicitly states that "freedom of the pen" is the sole means by which the people's right can be expressed in relation to a sovereign, an argument used there in response to Hobbes (Ak. 8: 304). Niesen lists these points alongside each other as part of a general argument in Kant for freedom of expression.

Without directly here attempting to engage Niesen's specific argument for a general argument for freedom of expression I did think it worth returning to the relationship between commerce and communication and what this might tell us about hospitality. If a right to seek commerce is to be understood in Niesen's sense, as a special kind of communicative right, then it follows that restriction on commerce is a form of restriction of communication. Despite this, it remains true that in the discussion of the third definitive article of perpetual peace that Kant remarks approvingly on the restrictions of commercial practice imposed on the Western powers by Japan and China. The reason for this is due to the colonialist policies of these powers, policies that Kant here clearly condemns.

The consideration of Kant's attitude towards these policies of China and Japan leads Niesen to argue for a distinction between commercial speech strictly speaking which covers "messages that are economic in intent" from a general commitment to free speech. So, despite the fact that Niesen initially interprets the reference to commerce in the treatment of the third definitive article as a communicative right he is nonetheless driven by the consideration of the examples of China and Japan to understand hospitality in such a way that restriction of commerce can be compatible with it even though commerce is the first referent Kant makes to help us understand hospitality.

Niesen is guided by the understanding that Kant is not committed in principle to unrestricted free trade and the approval voiced of the restrictive policies of Japan and China do make this clear. However it remains true on Niesen's account that we need to connect the treatment of commerce as a form of communication that is apparently open to restriction to two other elements of Kant's account. Firstly, to the provisional possession of the property of the earth (which should be, but is not by Niesen, connected to the state of nature between states) and to the injustice of colonialist adventures. If commerce as a communicative act is restricted by the latter it is nonetheless in some sense commended by the former. Further, someone who is washed up on the shores of a foreign place and not able to engage there in commerce due to restriction faces the prospect of death, the very prospect that should be ruled out by the right of hospitality. Niesen's restrictive understanding of commercial speech seems to raise serious problems for the consistency of Kant's view.

Without wishing to articulate a reading of hospitality that would commit Kant to a universal right of free trade it remains problematic in principle to endorse the restriction of trade Kant apparently allows when it is in conflict with a basic understanding of the right to hospitality. So a reading of the view of the trade policies of China and Japan that is not simply based, as Niesen's is, on a restrictive view of commercial speech, seems required.

Dignity and Status: Kant and Waldron

In the course of giving the first of his Holmes Lectures at the Harvard Law School Jeremy Waldron makes a distinction between two conceptions of dignity. He mentions on the one hand the Kantian view of dignity and on the other the one that is (or ought to be?) at issue in law and civil conduct. The distinction is presented as being that on Kant's philosophical view it follows that dignity is something inherent in each of us as human beings whilst in the law it is rather the case that dignity represents a common status that we possess but which is not merely inherent in us but rather indicative of a certain achievement.

Waldron's first lecture raises a number of important issues, too many to be addressed in this posting which is why I wish merely to raise a query concerning this distinction. It appears to be based on taking the Kantian conception of dignity to reside primarily in a general picture of practical reason whilst the legal view of it that is raised by contrast is rather one that defines and describes a social standing and is hence not encoded in a general picture of practical reason. In response to this I want to raise a substantive point concerning the conception of right that Kant himself worked with.

Waldron's general concern in the first lecture concerns a certain kind of defence of "hate speech" legislation on the grounds that what is at issue in it is not an "intention" in the private sense on the part of the speaker but rather an effect that is at work amongst those to whom such "speech" (normally a form of writing) is addressed. The effect that is at work is one of reducing the respect shown certain members of minority groups such that they will not be taken to have a legitimate right to equal citizenship rights. As such this kind of "speech" undercuts the sense that there is a social contract to which all have a general kind of connection with. Since this is the point of the "hate speech" in question it aims to undercut "public order" not necessarily in the sense of wishing to instigate violence but rather in that it suggests that some are not truly within the bounds of the order that has been specified as public or not there in a full sense.

Waldron's general defence of "hate speech" legislation in these terms has much to commend it but does not fit well with his designation of the Kantian view of dignity as something generically distinct from the legal notion of dignity as a status and achievement. It is correct that Kant speaks of dignity in terms of his general picture of practical reason and in those terms it is presented as something of incomparable worth that we are all possessed of. However Kant's general picture of practical reason has to be related to his view of right. When we look at his view of right we find a conception of it that shows that there is Kantian precedent for the "legal" conception of dignity that Waldron speaks of.

In Kant's discussion of the preliminary concepts of the "metaphysics of morals" there is a definition of personhood that determines a person as someone whose actions can be imputed to them which leads on to the sense of a person as someone subject to no other laws than those they give to themselves (autonomy). This notion is important in connection with Kant's subsequent notion of right though it is far from equivalent to it. When Kant turns to specifying the notion of right it is done in relation to a "universal law of freedom" which involves coexistence of each freedom with every other (in the universal or supreme principle of right: Ak. 6: 230). Since this coexistence requires that right be founded on mutual restraint that is based on the ground of each person's freedom then it follows that for a legal order to exist is for the status of personhood to have been given form in such an order. Hence, legal order is itself a general achievement.

Kant's fuller account determines this order through notions of equality, freedom and independence (e.g. Ak 8: 290). It is true that the view of the last of these notions is problematic (and alters between the essay on theory and practice and the Metaphysics of Morals) but the notion of equality involved, as distinct from that of the freedom, is grounded in the order of the law whilst the freedom (which is recognised universally in human beings) is something that the law "restricts and realises". If we see the law as that which gives freedom its substantive content but also as something that requires equality in its nature then it follows that the Kantian view of legal dignity is one that matches the achievement sense given to it by Waldron.

The "hate crime" problem that arises from being based on the attempt to either reduce the scope of public status given to a member of a group or to find a way of expelling them from that status as such does thus violate the sense of equality of each before the law. In this respect then there is congruence between the Kantian notion of dignity and the legal sense given to it by Waldron. I won't here expand further on the question of "hate crime" though the nature of it (particularly in genocide) is something that is worth consideration in terms of its boundary and limit since it does present itself as one of the ways the social contract can be breached.

The Antinomy of Politics and Morals

The "appendix" to Perpetual Peace is divided into two halves, the first part of which discusses the "disagreement" of politics and morals with a view to the idea of perpetual peace, the second half of which covers their "agreement". The "agreement" involves the account of the two principles of publicity covered in previous postings. I now wish to go back to reviewing the basis of the initial "disagreement".

Kant opens the discussion of this "disagreement" by reference to the point that morals is practical of itself, a contention that clearly refers back to the whole account of practical reason in The Critique of Practical Reason. In making this point Kant refers in passing to the general claim that "ought" implies "can". The point of these initial references is to make the claim (in contrast to some contemporary readings of Kant's practical philosophy) that morals and politics belong together as distinct parts, as he here puts it, of "doctrine of right" (Ak. 8: 370). Morals is now presented as the theoretical part of this doctrine with politics described as the doctrine of right put into practice. This does involve a distinction in some sense between what Kant will put out in the Doctrine of Right as a theory and politics as conventionally understood. So there is some form of relation that needs to be mapped (as is also apparent from Kant's essay on theory and practice).

The relationship that Kant maps between morals and politics thus understood is subsequently condensed into two statements. Politics is presented as based on the statement that we should be wise as serpents whilst morals is indicated to limit the application of this statement (thus in a sense to schematise it) by means of the condition that we be also as guileless as doves. Both need to be able to exist together if there is not to be a conflict between politics and morals.

The problem of the origin of the conflict is next traced to the attitude of the "practical man" who takes morals to be only theory. This person adopts the view that it is pointless to will the conditions of perpetual peace due to a claim concerning human nature. After a careful rendition of contractarian reasoning Kant points to the point that is at issue here which concerns the nature of power. The claim of the practical man is to the effect that the one who holds power will not let the prescription of laws be based on the ground of the social contract. Further, that states, once independent, will not be constrained by reference to other states. These claims rest on an appeal to political prudence and empirical principles of human nature. It is the combination of the "prudent" attitude and the purely empirical view of humanity that is the ground of this "realist" position, the same position still adopted in various guises in contemporary IR theory. Subsequent postings will trace further Kant's account of the problems he takes this view to have.