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Kant's Rechtsstaat and Its Reception in Japan

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Kant's Rechtsstaat and Its Reception in Japan KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN Professor Yasuo Hasebe Law School, Waseda University, Japan I. The Crooked Timber of Humanity Isaiah Berlin often referred to Kant’s aphorism, where he said, ‘Out of the crooked timber of humanity no straight thing was ever made’1. This aphorism appears in Kant’s ‘Idea for a Universal History with a Cosmopolitan Purpose’2. Here, Kant describes the following general tendency of humanity in the course of its historical development. Human beings are, by nature, equipped with the unsocial sociability, the ‘tendency to come together in society, coupled, however, with a continual resistance which constantly threatens to break this society up’3. To solve problems that emerge from this tendency, it is necessary to construct a civil society that ensures the greatest freedom for each citizen equally: the civil society that specifies with coercive laws the limits of each citizen’s freedom so that it can co-exist with the same freedom of others. Human beings are obliged to enter this state of restriction, which establishes a just and civil condition4. However, the most intricate point in this project is that it requires a legislator, who is also a human being. ‘Out of the crooked timber of humanity no straight thing was ever made’. Therefore, the task of solving problems is actually impossible. Establishing a perfectly just society is an unrealisable ideal, which humanity should strive to get closer to, eternally5. The problematique that Kant sketches here is the same as the connecting point between a coercive legal system and morality that each citizen embraces within her conscience, which he describes in The Metaphysics of Morals6. Kant describes the transition from the state of nature to the legal condition where what is mine or yours is legally demarcated and secured. The principles over what is mine or 1 Kant, Political Writings 44 [8: 21]. ‘8: 21’ signifies ‘volume 8, page 21’ of Kant’s Gesammelte Schriften, edited by the Royal Prussian Academy of Sciences. 2 Kant, Political Writings 45-46 [8: 22]. 3 Kant, Political Writings 46-47 [8: 24]. The translation is not precisely the same as that by Reiss. 4 In Immanuel Kant, Practical Philosophy (Mary Gregor ed, Cambridge University Press 1996) 450-56 [6:306- 313] (sometimes, I do not follow Gregor’s translation precisely). The cardinal importance of these paragraphs in understanding Kant’s legal theory is stressed by Jeremy Waldron, The Dignity of Legislation (Cambridge University Press 1999) 42 ff. and Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford University Press 1999) 207 ff. 5 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 451-52 [6: 307]. 6 Kant, ‘The Metaphysics of Morals’ in his Practical Philosophy (n 6) 455-56 [6: 312]. 292 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS yours are already intended to be valid in the state of nature, where common coercive legal rules do not yet apply. People’s rights there are merely private rights. On the other hand, in the legal condition, the distributive justice on what is mine or yours is assured by common objective rules. When you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice. –The ground of this postulate can be explicated analytically from the concept of right in external relations, in contrast with violence (violentia). No one is bound to refrain from encroaching on what another possesses if the other gives him no equal assurance that he will observe the same restraint towards him. No one, therefore, need not wait until he has learned by bitter experience of the other’s contrary disposition; for what should bind him to wait till he has suffered a loss before he becomes prudent, when he can quite well perceive within himself the inclination of human beings generally to lord it over as their master (not to respect the superiority of the rights of others when they feel superior to them in strength or cunning)?1 Having read thus far, one may think that Kant advocates the establishment of the legal condition on the grounds that human beings are by their nature not sufficiently rational or moral, and are inclined to fight each other regarding what is mine or yours. However, the reason why human beings should enter the legal condition is stronger than that2: It is not experience from which we learn of the maxim of violence in human beings and of their malevolent tendency to attack one another before external legislation endowed with power appears, thus it is not some deed that makes coercion through public law necessary. On the contrary, however well-disposed and law-abiding human beings might be, it still lies a priori in the rational idea of such a condition (one that is not rightful) that before a public lawful condition is established individual human beings, peoples and states can never be secure against violence from one another, since each has its own right to do what seems right and good to it and not to be dependent upon another’s opinion about this. So, unless it wants to renounce any concepts of right, the first thing it has to resolve upon is the principle that it must leave the state of nature, in which each follows its own judgment, unite itself with all others (with which it cannot avoid interacting), subject itself to a public lawful external coercion, and so enter into a condition in which what is to be recognised as belonging to it is determined by law and it allotted to it by adequate power (not its own but an external power); that is, it ought above all else to enter a civil condition. This is the fundamental reason why people should leave the state of nature where each one behaves as he thinks right and good and enter the legal condition. In the state of nature, as what is mine or yours is imprecise and insecure, the inclination of human beings to attack one another tends to bring about violent conflicts. However, the problem is not limited there. Even if each one sincerely seeks out the rightful principles and tries to realise good, as people’s judgements differ and conflict 1 Thomas Nagel suggests that Kant ‘clearly’ assumes that the ‘universalizability’ that the categorical imperative requires ‘will yield the same results for everyone’, although Nagel himself is sceptical about whether the categorial imperative can produce unanimously acceptable moral principles. See his Equality and Partiality (Oxford University Press 1991) 48. 2 Kant, ‘Groundwork of the Metaphysics of Morals’ in his Practical Philosophy (n 6) 58 [4: 403]. KANT’S RECHTSSTAAT AND ITS RECEPTION IN JAPAN 293 with one another, people’s safe social lives will never be secured. This is why everyone should live under a common legal system which is enforced by the state. II. The Categorical Imperative The idea that people’s moral judgements sincerely made conflict with each other may seem inconsistent with Kant’s view on morality. Did Kant not think that in accordance with the categorical imperative, human beings can always deliver one right answer to any moral question?1 He asserts that ‘common human reason, with this compass [i.e. the categorical imperative] in hand, knows very well how to distinguish in every case that comes up what is good and what is evil’2. Is it not the case that because of that, theorists who argue that there are higher moral values that ordinary political calculations cannot override are called ‘Kantians’?3 However, Kant did not think this way. Kant formulated the categorical imperative in several ways. One of the most well-known formulations is as follows4: ‘I ought never to act except in such a way that I could also will that my maxim should become a universal law’. ‘A rule that the agent himself makes his principle on subjective ground is called his maxim’5. Different agents may make different maxims. The categorical imperative, which requires everyone to act upon a maxim ‘that can also hold as a universal law’, excludes maxims that cannot hold as universal laws as agents’ guiding principles. It is its only task. Kant raises several examples: (1) A maxim: ‘from self-love I make it my principle to shorten my life when its longer duration threatens more troubles than it promises agreeableness’ cannot become a universal law, because ‘a nature whose law it would be to destroy life itself by means of the same feeling whose destination is to impel towards the furtherance of life would contradict itself’; (2) a maxim: ‘when I believe myself to be in need of money I shall borrow money and promise to repay it, even though I know that this will never happen’ cannot become a universal law, because the universality of a law that everyone, when he believes himself to be in need, could promise whatever he pleases with the intention of not keeping it would make the promise and the end one might have in it itself impossible, since not one would believe what was promised him’; (3) a maxim that a person with a talent that by means of some cultivation could make him a human being useful for all sorts of purpose can neglect his natural gifts and be concerned with devoting his life merely to idleness cannot become a universal law because as a rational person he necessarily wills that all the capacities in him be developed; (4) a person who thinks that while others have to contend with great hardships, each should be allowed to be as happy as heaven wills or as he can make himself cannot will that such a principle is to become a universal law, because he himself may in time face great hardships and need others’ help6.
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