International1 • INTERNATIONAL LEGAL THEORY Legal Theory PUBLICATION OF THE AMERICAN SOCIETY OF INTERNATIONAL LAW INTEREST GROUP ON THE THEORY OF INTERNATIONAL LAW

VOLUME 5 (2) • 1999 ISSN: 1527-8352

Chair: Nicholas Onuf, Florida International University Vice-Chair: Jianming Shen, St. John’s University Editors: Francesco Parisi, George Mason University Mortimer Sellers, University of Baltimore Student Editor: Charles Blomquist, University of Baltimore

LETTER FROM THE CHAIR liberal world in the decades following the Congress of Vienna affected the increasingly In this issue, ILT features a paper whose troubled experiment, in the United States, with author, Harry Gould, is a doctoral student in the federal republicanism. Please consider writing a Political Science Department at Johns Hopkins comment for inclusion in the next issue. ILT University. Hopkins is well known for its depends on you--at least some of you--doing so, scholars in political theory and international and I personally will be very, very grateful. relations, but it has not had anyone teaching international law on a regular basis since my Nicholas Onuf own days as a Hopkins student in the 1960s. Florida International University There is, of course, nothing new about this story. Throughout the United States most departments of political science offer no international law TOWARD A KANTIAN INTERNATIONAL LAW beyond the introductory level, if then. The steadily growing interest in international law in Seeing Immanuel Kant invoked by Professor vocationally oriented law schools offers some Nardin and his respondents in an earlier issue of compensation, but not enough. International International Legal Theory stirred a long legal theory too often falls between the cracks. dormant question: what would a Kantian theory of international law look like? (Fernando Tesón, I find it heartening that a student as serious The Kantian Theory of International Law, 92 and as capable as Harry Gould has turned to Colum. L. Rev. 1, 53-102). My answer will rest international law and put it at the center of his on two strongly held positions which run theoretical concerns. There must be others, contrary to much contemporary commentary: perhaps quite a few. For any of them who Kant is neither a Natural Law theorist (contra chance to read these words, I want to emphasize Nardin) nor a Cosmopolitan (contra nearly that ILT is the ideal forum for scholars, new and everyone writing on ethics and International established, to try out their work in progress on a Relations). I should also state at the outset, that sympathetic and superbly qualified audience. while I will strongly defend my interpretation of Kant, I do not claim that he would necessarily Every time I write this letter, I make the same agree with any or all of the uses to which I have plea: Submit your work in progress! And some put his work, although I believe we share a of you may have thought that I should put my common set of ends. money where my mouth is. I contributed to the very first issue, but not since. It seems fitting I will begin with two sections in which each then, as my tenure as Chair comes to an end, that of my rather contrarian claims will be elucidated a paper of mine will appear in the next issue. It and defended. Section three will look closely at is a pilot study for a long-term project that I am Kant's remarks on law, justice and public undertaking with two historians, James Lewis and Peter Onuf, to show how the rise of the

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international law. Armed with this and some articulation of natural law theory; it is its discussion of Kant's moral theory, (which for rejection. Kant eschews the teleology of the Kant imbues all of these topics), I shall outline ancient natural law thinkers, the deductive my vision of what a Kantian International Law natural law, which the Thomists shared with might look like, and conclude that the current Grotius (and despite some differences, state of international relations stands somewhere Pufendorf) and the perfectionism of Leibniz and between the state of nature over which Kant Wolff as bases for the derivation of the moral (following Hobbes) so famously fretted, and his law. Kant is quite adamant that morality is not goal of a world existing in a condition of right. rooted in nature. (4:409-411). J.B. Schneewind We have moved some of the way toward a state nicely delineates another of Kant's differences of right. The world is still composed of states, with the natural law tradition. Unlike Kant, but their rights and freedoms are delineated, natural law theorists did not believe that people limited and ensured by a supranational authority could comprehend the requirements of morality with (some) coercive capability. Self-help still without being told by an outside source exists but its allowable usage has been greatly (authority). Although God had given humanity circumscribed. The theory I propose is based the ability to understand most basic principles, upon viewing states as both legal and moral the majority of people were unable to discern the persons, and articulating categorical yet wide moral requirements implicit in those principles. duties backed by coercive sanction. My theory is Likewise, the natural law theorists felt that most humanistic, duty-based, and at times moralistic persons could not grasp what was required in as Kant's views require. particular cases. (J.B. Schneewind, Autonomy, Obligation and Virtue: An Overview of Kant's Kant and Natural Law Moral Philosophy, in The Cambridge Companion to Kant, 311-12, (Paul Guyer ed., Professor Nardin makes a very strong claim 1996)). about Kant's commitment to natural law. Natural Law did influence Kant (especially his moral Even setting aside the limited ability to philosophy), but only slightly, as with Hobbes. know what the natural law commands, they Professor Nardin seems to believe that any non- viewed most of humanity as unwilling to obey consequentialist theory will be ipso facto the natural law, and hence in need of coercion naturalist. "It is this priority of principles with the threat of punishment. This coercive forbidding wrong over injunctions to produce principle was consistent with their conception of good ends that distinguishes natural law as a obligation. Kant rejected this as pure moral system." (Nardin, International Legal heteronomy, because for him, to act out of fear Theory 8-9 (1999)). Kant's Categorical of punishment, even if this entailed acting in Imperative holds without regard to accord with the moral law, was not acting consequences, so Nardin places Kant's legal morally. (and moral) philosophy within the naturalist tradition. Kant and Cosmopolitanism

The problem with Nardin's view is that It has become commonplace to consider Kant's system of maxims and imperatives is Kant a Cosmopolitan; it is my contention that based on the internal legislation of moral law this is incorrect for several reasons. Kant is (autonomy). To derive one's morality from any indebted in his moral philosophy to the Stoa, external source, even the Natural Law (or divine and he does appropriate selectively the language law or any other source) is to fall into of Cosmopolitanism, but there is little beyond heteronomy. "I am not under any obligation this, and much to the contrary. A useful foil for even to divine laws except in so far as I have these purposes is the work on Cosmopolitanism been able to give my consent to them" (All by Martha Nussbaum. (Martha Nussbaum, Kant citations to Kant will utilize the standardized and Cosmopolitanism, in Perpetual Peace: Academy pagination; 8:350). This is not a re- Essays on Kant's Cosmopolitan Ideal (Bohman,

ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999 VOLUME 5 INTERNATIONAL LEGAL THEORY • 33 et al. eds. 1997); Martha Nussbaum, Patriotism articulates the content of cosmopolitan law, and Cosmopolitanism, in For Love of Country: obviates this criticism, because his vision of Debating the Limits of Patriotism (Nussbaum cosmopolitan law is largely without ed., 1996)). content.(8:360-362; 6:352-372).

Nussbaum begins her articulation of Kant's In Kant's claim regarding the "organic purported cosmopolitanism with the textual interconnectedness" of humanity, Nussbaum argument that Kant frequently uses the term again sees debts to the ancients; however, it is "Cosmopolitanism," and does so often in close mistaken to construe the assertion that "[t]he proximity to quotations from classical, Stoic peoples of the earth have thus entered in varying figures. The Cosmopolitanism that Kant is degrees into a universal community, and it has claimed to espouse is Stoic in origin, but developed to the point where a violation of laws mediated by modern natural law theory. in one part of the world is felt (Nussbaum leaves the meaning and everywhere"(8:360) as equivalent to the Stoic consequences of this claim unexplored. topos that the contingent political community is without moral value. As formulated by Kant, Nussbaum focuses upon Kant's notion of the the cosmopolitan moral community is volitional Kingdom of Ends to illustrate his indebtedness and contingent, rather than the matter of physis to the Stoics; however, she mistakenly attributes the Stoa considered it. a teleological function to this concept, rather than the regulatory function which Kant assigns For Kant, the state is far from irrelevant; his to it. (8:433-434). modified contract theory (6:312-316; 8:289-297) may indicate that states are contingent creations, Without any textual support, Nussbaum but there can be no doubt that they are makes the very bold assertion: absolutely necessary. Prior to entering into a lawful state, there exists, as for Hobbes, only a As do Marcus and Cicero, Kant stresses that the situation of self-help; for Kant this is the community of all human beings in reason entails situation of ultimate moral degradation for a common participation in law (jus), and, by our mankind. (6:312). While the specific citizenship very rational existence, a common participation one carries may be contingent and in se morally in a virtual polity, a Cosmopolis that has an indifferent, loyalty and obedience to that state implicit structure of claims and obligations regardless of whether or not there is an actual are absolute requirements with significant moral political organization in place to promote and weight -- hardly the views of a Natural Law vindicate them. (Nussbaum (1997) at 37). thinker, especially the potentially subversive Natural Law of Nardin's article. Kant argues that there can be no law or right outside of a political organization that can As the state is a necessity for justice and the "promote and vindicate" them. For Kant virtual exercise of right within a given territory, Kant polities can only yield virtual rights. states that they are both the bearers and guarantors of rights among themselves. This is a Nussbaum attaches significant weight to point often repeated by Kant; it is found in the Kant's discussion of "Cosmopolitan Law," and Seventh Proposition of Idea for a Universal the "organic interconnectedness" it seems to History with a Cosmopolitan Purpose (8:24-26), imply. Referring to the discussions in Perpetual all three definitive articles of Perpetual Peace Peace in which Kant claims that "the idea of a (8:350-360), implied in several of its cosmopolitan law" complements politics and Preliminary Articles, and the closing passages of international law, Nussbaum sees strong Theory and Practice. (8:312-313). Nowhere in affinities to Cicero and Marcus Aurelius -- she these pieces does Kant envision a world without fails, however, to provide textual references for states. comparison. (Nussbaum (1997) at 37). Examination of the way in which Kant

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For Kant, human universality does not, and maxim the freedom of choice of each can cannot outweigh the necessity of the state. It is coexist with everyone's freedom in accordance telling that the only alternative to a world of with a universal law." (6:230). Freedom is thus states Kant can conceive, a single world state, is the absence of interference by another's external rejected peremptorily (8:357); Zeno's ideal of actions upon one's own external actions. the abolition of states is, if not utterly alien to Kant, at least beyond the moral will of Kant's Possession of a right entails authorization to humanity. employ coercion to ensure that right.

This is so because for Kant, the primary Resistance that counteracts the hindering of an obligation that each citizen owes is to her state, effect promotes this effect and is consistent with there is no possibility for cosmopolitan it . . . coercion is a hindrance or resistance to obligation except between states. In essence, freedom . . . if a certain use of freedom is itself a cosmopolitanism deals with supererogatory hindrance to freedom in accordance with universal laws, coercion that is opposed to this is duties, but for Kant, there are no duties superior consistent with freedom in accordance with to those owed to the state. There were for Kant universal laws, that is, it is right. (6:231). no political or legal duties owed humanity per se. To the extent he recognized anything What is entailed, is not a subsidiary right of approaching this notion at all, it was only coercion (or perhaps counter-coercion); for realizable within the juridical framework of Kant, "one can locate the concept of right states, and could only be sustained by discrete directly in the possibility of connecting universal individuals. reciprocal coercion with the freedom of everyone's Right and authorization to use Kant on Law and Justice coercion therefore mean one and the same thing." (6:232). The bulk of Kant's writings on law and justice are found in the Metaphysics of Morals, In the state of nature, everyone possesses particularly in the Rechtslehre (Doctrine of this right, and because everyone serves as the Right); however, elements important to the judge in their own case, there is complete development of a theory of international law can lawlessness; it is because of this lawlessness that also be found in the Tugendlehre (Doctrine of we derive the imperative exeundum e statu Virtue). (Section II of On the Common Saying: naturali. As he recounts, it is necessary This may be True in Theory, but does not Apply (imperative) to substitute authoritative, in Practice, has some useful supplementary enforceable (coercive) judgment for combat remarks. Cf. 8:289-307.) As is to be inferred (self-help). (Pierre Laberge, Kant on Justice and from the term Rechtslehre, the central focus is the Law of Nations, in International Society: upon Right (and rights in the plural to a lesser Diverse Ethical Perspectives, 85 (Mapel et al. extent). eds., (1998)).

For Kant, right and freedom coincide, and . . . unless it [one] wants to renounce any address the external relations between concepts of right, the first thing it has to resolve individuals; the term right is defined as the upon is the principle that it must leave the state ability to act upon one's innate (i.e., natural) of nature, in which each follows its own freedom. As Kant explains, "[r]ight is the sum of judgment, unite itself with all others . . . subject the conditions under which the choice of one can itself to a public lawful external coercion, and to be united with the choice of another in enter into a condition in which what is to be accordance with a universal law of recognized as belonging to it is determined by law and is allotted to it by adequate power (not freedom."(6:230). Translating this into action, its own but an external power); that is, it ought Kant goes on to state: "Any action is right if it above all else to enter a civil condition. (6:312). can coexist with everyone's freedom in accordance with a universal law, or if on its

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The highest task which nature has set for excoriated. Returning to my earlier remarks, mankind must therefore be that of establishing a Kant's vision of the cosmopolitan is very tepid society in which freedom under external laws when compared to the strong articulations of the would be combined to the greatest possible Stoa. Consider the following: "Cosmopolitan extent with irresistible force. (8:22). Right shall be limited to conditions of Universal Hospitality." (8:357). The only duty one is This is no less true of states than of owed, the only right one carries is to not be individuals for Kant. There remains an -- to my treated with hostility. To be fair to Kant, this mind uninteresting -- exegetical struggle over has developed into a powerful anti-imperialist whether Kant ultimately sought a world argument. To compare this sentiment to notions republic, or a confederacy of states. However, he of natural universal community, and the was consistently explicit in his demand that supererogation of local duties, grossly overstates whatever form the supranational body might the kernel of the cosmopolitical in Perpetual take, it must not be sovereign. (I find both Peace. In the Rechtslehre at 6:352-353, Kant is uninteresting and unhelpful the question of even more restrictive, limiting his conception to whether non-democratic states might be universal laws of commerce. Unlike Professor admitted into whatever institution is ultimately Tesón, I do not consider this a helpful starting created. Each time Tesón links Kant and point. In the next section, I will go beyond democracy, he does Kant, a republican and Kant's strictly political and juridical writings to noted opponent of democracy, a great disservice. construct my own vision of a Kantian (8:352). international legal theory.

Kant on Jus Gentium Toward a Kantian Theory of International Law Nowhere does human nature appear less admirable that in the relationships which exist The elements of the right of nations are between peoples.(8:312). these: (1) states, considered in external relations to one another, are (like lawless savages) by In the state of nature among states, the right to nature in a non-rightful condition. (2) This non- go to war (to engage in hostilities) is the way in rightful condition is a condition of war (of the which a state is permitted to prosecute its right right of the stronger), even if it is not a condition against another state, namely by its own force . . of actual war and actual attacks being constantly . when it believes it has been wronged by the made (hostilities).(6:344). other state, for this cannot be done in the state of nature by a lawsuit (the only means by which disputes are settled in a rightful condition.). . . . There is no possible way of counteracting (6:346). this except a state of international right, based upon enforceable laws to which each state must submit (by analogy with a state of civil or Kant had little to say about International political right among individual men). (8:313). Law per se; his commentary focuses upon what he termed cosmopolitan law, what today might As I indicated in the introduction, I hold that be referred to as international private law, and of the contemporary international environment course, famously, the necessity to establish "a carries elements of both the state of nature and law governed external relationship with other the state of right. States do retain a states..." (8:24)(Emphasis in original) Kant was circumscribed right of self-help, and there are also famously critical of the international law of coercion-based rights enforceable by his day; his scathing remarks about the sorry supranational congeries of organizations and comforters Grotius, Pufendorf and Vattel regimes -- some of what Kant called for has (8:355) is perhaps one of the best known come about. That this UN-based system is passages from Perpetual Peace. It is curious imperfect is an indication of the extent to which (and perhaps self-serving on Kant's part) that the world is still a state of nature. However, for Christian Wolff was not included among those

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the theoretical purposes at hand, I shall bracket As regards states, I take this to found a basic the element of actual lawlessness to focus on rule of non-intervention (similar to that posited deriving the rights and duties of states -- beyond at 8:346); however, we are not yet ready for a Kant's tepid claims discussed earlier -- for full discussion of the topic. I will make one prescriptive purposes. preliminary remark; Kant claims only one innate right: freedom. (6:237-238). This freedom It is no accident that these derivations map entails the "innate equality," sui generis, very closely onto those of individuals. Kant is meaning "beyond reproach" and freedom of ambivalent about the moral, although not the action. We will address below how these criteria legal, personality of states; for the purposes at of freedom manifest themselves for sovereign hand, I shall take the position that states are to states. be treated and conduct themselves as if they were moral persons. Moral personality, like The translation of the rules regarding legal personality, entails the possession of coercion (and its relation to right) to the realm of enforceable rights as well as obligations to the interaction between states should be quite others, some of which entail non-interference simple; in the pure state of nature, the rule is with the exercise of rights; others connote self-help. As a result, of the insecurity which positive duties. Perhaps if not more novel at reigns, the imperative is to exit the state of least more provocative, this analogy also entails nature in favor of something analogous to civil the holding of ends by states, some of which society, thereby renouncing the right of self- themselves entail duties. (The great amount of help. Since 1945, the world has been moving in reification this obviously implies is simply precisely this direction; membership in the UN heuristic. The reader should be aware, however, entails the renunciation of self-help; resort to it that I am not taking the Hegelian line regarding outside of self-defense -- itself quite narrowly the organic character of the state; G.W.F. Hegal, defined -- becomes a crime subject to sanction. Philosophy of Right, 321-329). That the system works imperfectly (to be extraordinarily generous) is on Kantian grounds Kant shares the traditional notion that every a failure of will among states. right entails a correlative duty; going beyond this common assumption, he further claims that Since right, as formulated by Kant, by and some duties are innate. We have previously seen large entails just being left alone, a potentially what Kant calls his “Universal Principle of more fruitful path for generating an international Right:” “Any action is right if it can coexist law is by recourse to states' duties; I intend to with everyone's freedom in accordance with argue for the creation of several new legal universal law, or if on its maxim the freedom of duties. An immediate difficulty presents itself: choice of each can coexist with everyone's the most elaborate discussion of duties is to be freedom in accordance with a universal found in the Tugendlehre, but there Kant law.”(6:320). In practical terms, this means that explicitly states that these duties of virtue -- as long as an individual does not impede another which come from the possession of ends -- are person by their external actions, then that person subject only to self-binding, not external is free; refraining from impeding is an issue of coercion, because the ends -- possession of right, and later law; the motivation behind this, which generate them -- cannot be dictated. which is equally important to Kant, remains a (6:381, 394). My provisional solution is to take matter of ethics. From his "Universal Principle the notion of public declaration and the view of of Right," Kant derives the binding 'Universal treaties as voluntary agreement to limit one's Law of Right.' It states: "act externally [so] that actions subject to external coercion as the bridge the free use of your choice can coexist with the between moral and legal duties. In effect, this freedom of everyone in accordance with a can make one's private (moral) duty a binding, universal law." (6:231). external legal duty by taking the appropriate symbolic steps or uttering the requisite speech- acts. If a state declares itself to be bound to do

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or refrain from doing something, this becomes to make the seemingly contradictory remark that an obligation, even if the act in question arises the real end is not happiness, but removing from a moral duty. In Kantian terms, this serves obstacles to others' morality; herein lies the big to codify a duty of virtue into a duty of right. payoff. (I find the notion of “general well being” (See also, Dorothy Jones, The Declaratory to be too vacuous to found international legal Tradition in Modern International Law, in duties, and so shall not address it). By giving Traditions of International Ethics, 42-61 attention to what Laberge calls “taking needs (Nardin et al. eds., 1992)). This does not seriously,” incentives toward lawlessness are necessarily meet Kant's criterion of acting for reduced. the right reason, but we have left the realm of the explicitly ethical to create a new juridical For each of these obligations, we can sensibility. formulate negative and positive articulations; from these maxims can be derived (I envision Kant offers two ends, which are in the maxims taking the form of formal themselves also, duties; I find them exceedingly declarations or multilateral treaties) binding useful starting points, despite some prima facie obligations; in each instance, the negative difficulties. The first is the duty to oneself to obligations seem easier to universalize, although strive for perfection; the second duty is to the positive obligations give more discretion and promote the happiness of others. Kant's latitude. discussion of individual perfection is very Aristotelian in its teleological focus on In Kant's terminology, these positive capacities; the duty is to harmonize one's obligations are “wide”; they prescribe maxims, abilities with one's ends, a qualitative/formal but not specific actions. There remains latitude conception. What Kant has in mind is cultivating for choice in following the law, since neither the will to satisfy the requirements of duty; “how” nor “how much” is specified by the duty. "cultivate the will up to the purest virtuous It is in the maxim that these aspects are disposition, in which the law becomes also the determined, and by the relevant tests that their incentive to his actions that conforms with duty satisfactoriness is determined. Wideness, and he obeys the law from duty. This disposition however, does not entail permission for one to is practical perfection." (6:387). By doing this, make exceptions. we make ourselves worthy of the humanity in us. "Cultivate your powers of mind and body so Before any maxim/policy is publicly that they are fit to realize any ends you might announced and transformed into a legal encounter." (6:932). obligation it must be subjected to the same criteria which a Kantian would subject any On its face, this fails to lead to anything maxim. Only once a proposed policy/maxim readily helpful for international law, because has met these criteria is it suitable for being notions of state perfection are abstruse at best, turned into black letter or being declared a and chilling when put in terms of purity at worst. binding obligation. For demonstrative purposes, The important aspect is Kant's emphasis on the I shall subject several of my proposals to these necessity to perform duty for the sake of duty, Kantian hurdles. instead of for less worthy motivations such as fear of punishment or desire for reward. While Maxims are "the practical principle of a not readily codified, this is a useful regulative particular rational agent at a particular time." principle given its insistence on lawfulness for (Onora O'Neill, Constructions of Reason: law's sake. Explorations of Kant's Practical Philosophy, 83 (1989). It is the role of the Categorical The duty to promote the happiness of others Imperative to test which maxims conform to is the more useful of the two. Kant subdivides it practical laws. The general form of a maxim is: into four components, prosperity, strength, In circumstance C, the agent will (will not) do health and general well-being; he then proceeds action A. Or, more specifically, In C, I will

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(not) do A. The imperative form is thus: in C do consumption would not be universalizable), the A. (4:412-414). This can include a purposive same can be derived for states. A negative duty component. Such a maxim would now take the would be to refrain from predation or form: In C, I will (or will not) do, A for reason / discrimination; the positive duty allows for a end R; its imperative form: in C, do (or do not range of policies from granting “Most Favored do) A (for R). Nation” status to the international redistribution of wealth. The first step in testing a maxim is the prudential test of the Hypothetical Imperative; In the form of maxims, the negative duty does the proposed act bring about the end? If it would take the form: In relation with other does not the maxim must be reformulated. Only states always refrain from predatory if it meets this criterion is a maxim subject to (discriminatory) behavior. This is easily derived testing by the Categorical Imperative. and articulated; positive duties do not generate maxims as easily, because each posited action The First Formulation of the Categorical must not conflict with any other duty, to self or Imperative demands that we determine if the other. Provisionally, it might take the form: In maxim can be made into a universal law; this is relations with states in material need, always done first by rephrasing it in a universalized give such assistance that you aid without form: Everyone do A in C. Once one has discrimination to others in need or to the formulated the maxim, Kant offers two ways of detriment to the pursuit of your own legitimate testing it to determine whether it passes the ends. criterion of the Categorical Imperative. (See, J.B. Schneewind at 320-21). The first is the so- It should be quite evident that there is no called contradiction in conception test. (4:422). contradiction in willing non-predation; in fact, it If you cannot coherently think of a world for is perhaps of greater explanatory to test the which your maxim is a universal (natural) law, converse maxim: Everyone always behave in a you are not permitted to act upon it. Take for predatory manner; here we can see that so example, the maxim of stealing whatever one willing posits a world of universal predation, needs. Where this concept a universal law, the pushing us back into the state of nature, and effect would be the insecurity of the willer's own eliminating the security of person and property. property. In effect, he simultaneously wills We can likewise determine that the positive property and not-property, a logically impossible formulation neither eliminates the institution of condition. aiding, nor endangers the willer's capacity to aid or pursue her own ends. His other test is the contradiction in willing; in it, what may well be conceptually coherent is Strength still not able to be willed to be a universal law. Perhaps the best example of this is the maxim of As a scholar of international relations, I am never assisting anyone. For this to be universal, predisposed to equate strength with military the willer robs herself of the possible assistance security; however, contemporary scholarship she might need to realize her own future ends, now deals with topics including environmental but because it is an analytic truth that willing an security and notions of security imbued with end entails willing the means toward it, this concepts imported from Critical Theory. For the maxim cannot pass. purposes at hand, I shall restrict myself to the military security of the state, but invite readers Prosperity to formulate duties and maxims addressing other conceptions of security. Just as the prosperity of an individual entails a duty of ensuring her material subsistence at Again, the negative duty is quite minimum and material satisfaction at maximum straightforward, and the positive both wide and (a maxim of encouraging gluttony or over complex. The simplest way to promote the

ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999 VOLUME 5 INTERNATIONAL LEGAL THEORY • 39 strength of a state is by refraining from harming right, coercive action will be taken not just in it, a policy of non-aggression. Hence: In instances of violating Security Council relation with other states always refrain from resolutions, but also pursuant to non-compliance aggression / refrain from promoting your ends with ICJ judgments or those of regional and through aggression. Very straightforward, and human rights courts. of course, already a legal duty. One need not even perform the logical tests utilized above, Notions of preemptive attack are anathema because the converse maxim of utilizing force to to Kant, whereas there is some room for them in meet one's ends entails treating the other state as international law. For Kant, this falls under the merely a means, which is forbidden by the discredited category of Jus Necessitatis; "It is a second formulation of the Categorical matter of violence being permitted against Imperative. (4:427-429). someone who has used no violence against me." (6:235). The standard delineated in the Caroline For the positive aspect of the duty, I episode: the "necessity of that self-defense is envision a range spanning aid through alliance. instant, overwhelming and leaving no choice of In relations with other states facing external means and no moment for deliberation" is threat (specifically aggression) always offer aid perhaps better than the answer provided by a to redress the aggression which goes neither strictly Kantian analysis. Given how narrowly beyond stopping the aggression nor to the circumscribed the conditions are, it is detriment to the pursuit of your own legitimate universalizable, but a great deal of good faith ends. Given the particularly wide nature of this must be presupposed. duty, prudential issues will determine where along the spectrum the specific obligation lies; The final question about preventive once this determination has been made, the now measures is tricky; in the international state of more specific maxim is to be subject to testing. nature, this would not be allowed because it It is perfectly conceivable that a wrong choice of would be simply a punitive war against the action will be rejected. In particular, violating defeated nation which presupposes a hierarchy either of the criteria built in to the proposed of authority absent from that condition. In the maxim is to be rejected; one cannot coherently current international situation, in which such a will a universal law of retribution nor aid to the hierarchy does exist, it is plainly allowable when detriment of one's own ends. undertaken or authorized by the Security Council, but in the absence of this criterion, the Several other issues immediately confront situation is simply bellum punitivum. this maxim: Is the state facing aggression or lawful coercion? What is the rule with regard to In principle, Laberge and Tesón are correct preemptive or anticipatory attack? Can actions in that there will be no aggression in the be taken which are intended to prevent a repeat Confederation (Republic) Kant envisions, but of the aggression? Both Kant and extant until that time, issues of the physical security of international law have useful responses to these states remain. If such a system as envisioned in questions. Perpetual Peace does come about, coercion (contra Tesón) will remain, just as it is a In response to the first, Kant is absolutely necessity in domestic society -- at least until all clear that no resistance to lawful coercion can be persons organic and juridical have perfected just, and hence in a law governed environment themselves. to do so would be illegal and subject to further sanction, as would any party complicit in such Health resistance. While typically thought of in terms of the use of force, coercion, it must be I envision two equally plausible remembered, can also take the form of UN conceptualizations of health for the purposes at imposed sanctions. In a system which more hand: we might consider the health of a state's closely approximates the state of international populace, or equally plausibly (if rather

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metaphoric) the health of the body politic. Kant The negative form of the obligation is would have found the latter perfectly reasonable. simply non-interference in a state's political I shall address both, although my own system. If things seem to be working well, do preference is for the former. not attempt to bring about changes which are intended to make the system or its institutions The very simple negative duty with regard more to your liking. Provisionally, we might to the populace is to refrain from intentionally conceptualize "working well" not necessarily as harming them. A maxim derived from this duty robust republicanism, but merely as orderly would reject such policies as very broad (non-violent succession) and without grievous economic embargoes in which the brunt of the violation of the rights of the population. sanctions are borne by the populace at large. In this instance, the converse maxim is again more The positive obligation is to promote good easily tested and rejected; a rejection made all (i.e. republican for Kant, liberal-democratic for the more pointed by the fact that it represents Tesón) governance and institutions. A caveat such a grievous violation of the second must, however, be added: this should not involve formulation of the categorical imperative. foisting institutions on societies, which do not desire them; in line with Kant's own position, a A difficulty arises when this is easily good example can go a long way. The relevant rejected in the form of a unilateral action, e.g., maxim might look something like: "In relations the US embargo of Cuba, but remains, strictu with other states always promote (republican) sensu, legal when done under UN auspices (Iraq institutions and forms of governance as far as since 1991). The solution, as I see it, is to start popular will accepts them." A maxim, which from the recognition of this duty and proposed any such sort of paternalistic delegitimize it universally; the UN itself must imposition, could not be coherently willed repudiate practices directly harmful to because it would entail the very same imposition populations -- this, of course, entails legal and on the willer. It is further paramount that they moral personality for the UN. not be forced where they are not wanted. Insofar as Kant's account of Perpetual Peace is The very wide positive duty is to assume teleological, this would surely promote a responsibility for aiding in the improvement in reactionary backlash impeding realization of the the health of a population. Again, this leaves telos. great discretion, and bears the caveat that this must be done without discrimination to other Freedom, Sovereignty and Non-intervention states in need insofar as means allow. Kant's remarks on beneficence (6:452-454) and charity As mentioned earlier, by starting from the (27:455-456) offer interesting starting points for stance that states are to be treated and comport practical guidelines. themselves as if they were moral persons, states are also to be considered to be by nature free. The notion that the body politic exhibits There are four aspects of juridical freedom for health and illness the same as any individual has Kant, which is not to be confused with his an intellectual lineage which goes back at least concept of autonomy; the innate equality of all, to the early-moderns; Kant accepted this notion, being sui generis, being beyond reproach, and and utilized it, for example, in his discussion possessing freedom of action. I believe that the representing non-republican forms of narrow way in which Kant defines each of these government as "deformed." For these purposes, aspects can actually clarify theoretical as well as I shall focus on political institutions, although legal questions about sovereignty. plausible cases could be made for addressing the polity or even political culture, which I again Innate equality simply connotes not being invite. able to be bound by others to an extent greater than that to which you can bind them. This is already a part of the law, it is enshrined in the

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Vienna Convention on the Law of Treaties, and only relevant to the extent that the international in the general rule of rebus sic stantibus. community exists in a state of right, because in Articles 61 & 62 dealing with subsequent the state of nature, one must always assume impossibility of performance and rebus . . . threat. protect this equality from changes in material circumstance and prevents the inequality of The final aspect of juridical freedom is the burden. While not part of positive law, freedom of action; in various guises it has been Woodrow Wilson's Fourteen Points also seen throughout this work: one can do anything incorporate this point. to others that does not diminish what is theirs. This is perhaps the fundamental principle of For an individual to be sui generis, he or she liberalism, and presupposed in commerce. This must be their own master or mistress; this is also seems a sine qua non of sovereignty; to the surely the sine qua non of sovereignty. If a state extent that a state is limited in its actions it is does not rule itself, it is simply not sovereign. that much less sovereign. I see, however, no This is inviolable; should one state subject conceptual problem with the voluntary cession another to itself, it has committed the equivalent of freedom of action and hence sovereignty of enslavement; any attempt to do so is entailed by membership in the UN; in fact, each equivalent to an attempt on one's life and of the maxims proposed in the previous generative of a right to self-defense. Kant discussion entails some limitation upon the discusses this under the topic of bellum freedom of action, as does every treaty. subjugatorium, which he equates with the moral annihilation of the state. Just as a person's legal A difficult question arises with regard to and moral personality is destroyed by societies which choose to be closed and autarkic. involuntary servitude the same is true for the Their wishes must be respected, but following conquest of a state.(6:347). Kant elaborates the Kant's discussion of Cosmopolitan Right which I relevance of this principle for the populace: have so assiduously shunned, they are obliged a certain number of duties to outsiders.(6:352-353; Still less can bondage and its legitimacy be 8:358-360). derived from a people's being overcome in war, since for this one would have to admit that a war Bolstering Pacta sunt Servanda could be punitive. Least of all can hereditary bondage be derived from it; hereditary bondage Because Kant's account of the as such is absurd since guilt from someone's crime cannot be inherited.(6:349). impermissibility of lying is so controversial, I would like to view it alongside the rule of pacta Setting aside the rendering alieni generis by sunt servanda. This is particularly important aggression, another complicating possibility because each of the duties discussed in the presents itself, the voluntary cession of previous section is based upon a pledge, which sovereignty to a supranational body (at present even though enforceable should be considered the EU, perhaps ultimately the UN). In the case binding in the absence of coercion. In a way, of voluntary merger, there would seem to be no Kant's categorical prohibition of lying can be problem; although it might be claimed that this viewed as reinforcing the existing norm of pacta violates the Second Preliminary Article of sunt servanda (which is albeit already black Perpetual Peace, I find this unconvincing letter and, perhaps, jus cogens). In the opinion of (assuming, of course, republican principles Kant, lying is the greatest violation of the duty guided the decision). owed to oneself; it makes one contemptible in his or her own eyes, and annihilates their dignity Kant's principle of a person being beyond as a human being.(6:429-431). Presumably this reproach simply connotes that she cannot have will hold for (reified) states as well, given the wronged anyone prior to acting, i.e., there must stipulation premising this whole endeavor, that be no presumption of harmful intent. This seems states are morally equivalent to individual persons; a premise which directly rejects all of

ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999 42 • INTERNATIONAL LEGAL THEORY VOLUME 5 the fundaments of raison d'etat. Making lying Nicholas Onuf, Anthony Pagden, J.B pledges is not only a prudential error in that the Schneewind, Nicholas Tampio and Joseph Ward state will lose credibility, it is morally wrong for their criticism and assistance with this paper. because inherently non-universalizable. To explore this, we need to go back to the Harry D. Gould Grundlegung, which discusses lying in three Department of Political Science contexts. (4:402-03, 4:422, 4:429-30; See also, Johns Hopkins University On a Supposed Right to Lie from Philanthropy, 8:423-30).

When one tries to universalize a maxim of REPLY TO GOULD lying, or as Kant expresses it, making false promises, the maxim fails because in such a Harry Gould takes some remarks of mine on world there could be no promises at all, because natural law in the preceding issue of all pledges would be assumed false. Without International Legal Theory as a point of promises, there would be no lying, hence "my departure for rethinking the question of what a maxim, as soon as it was made a universal law, Kantian theory of international law might look would be bound to annul itself." (4:403). This like. He suggests (among other things) that tests also fails the contradiction in conception Kant's moral theory, when applied to test; promising would become impossible, "and international relations, is capable of supporting the very purpose of promising, itself impossible, positive duties of benevolence on the part of since no one would believe he was being states (such as to promote the prosperity, promised anything, but would laugh at strength, and health of other states or their utterances of this kind as empty shams." (4:422). inhabitants). This is an unusual but entirely It is plainly evident that in terms of the second reasonable extension of Kantian ethics, and he is formulation, no one could rationally wish him or right that it takes the usual discussion of Kant's herself to be lied to because this is to be used as international theorizing in a new direction. merely a means to an end. (4:429). Gould is also right when he joins Pierre Conclusion Laberge in criticizing, as un-Kantian, the usual view that Kant's international theory idealizes a Although using Kant as a starting point does world order that is cosmopolitan, not not on all matters lead to a radical departure international. But his dart misses the board when from the corpus of international law as we he takes exception to my characterization of currently have it. I believe I have demonstrated Kant as a natural law theorist. Gould argues that the ways in which it can create several new sets Kant disagreed with the ethical theories of his of duties which will bring the world much closer Greek, Roman, Thomist, Grotian, and to the end advocated in Perpetual Peace, Leibnitzian predecessors, rejecting their claim without undo attention to or squabbling about that morality is rooted in nature. He takes it as uninteresting specifics of Perpetual Peace. definitive of the natural law perspective that While the political world within which Kant morality is a body of laws divinely ordained and wrote no longer exists, the moral universe is enforced by fear of punishment. plausibly the same; hence, if we share his ends, which I believe most scholars of International This is not what I meant by natural law, Law and International Relations do, resorting to however. Like Alan Donagan, I regard Kant as a more fruitful set of tools than the Articles of the greatest of all natural law theorists precisely Perpetual Peace is needed. I believe I have because he escapes the errors of his demonstrated some of these. predecessors. The essence of natural law is that morality binds rational beings and can be I would like to thank John Clark, William known, in principle, by the use of reason. Connolly, Richard Flathman, Siba Grovogui, Morality is not, then, derived from an external

ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999 VOLUME 5 INTERNATIONAL LEGAL THEORY • 43 source, unless "autonomy" is to maintain one's be applied to contemporary relations between own views against reason itself, which is a states. Kant proposes six preliminary articles of possible view, but not one held by Kant. a perpetual peace among states, and three definitive articles, supplemented by a guarantee, Gould is correct that Kant is not a natural law a secret article, and two appendices, to maintain thinker if by natural law we mean a conception a universal community (Gemeinschaft) of embracing the authoritarianism discerned by political, international and cosmopolitan right. Jerome Schneewind in some of Kant's predecessors. But I see no reason to be governed Kant's Preliminary Articles of by such a historically specific definition of Perpetual Peace natural law. I have no allegiance to the expression "natural law," however, and indeed Kant's six preliminary articles of perpetual would prefer to speak simply of "morality." I peace are practical and prospective. They lay out chose it as the best way of making my argument basic rules through which existing states may in terms familiar to legal theorists, who are in bring an end to hostilities and develop the basis the habit of discussing the relationship between for creating perpetual peace. Kant intended morality and law by contrasting "natural" and several of his proposals (2, 3 and 4) to admit "positive" law. some flexibility or subjective latitude, so long as their ultimate purposes not be lost. Kant's six Terry Nardin preliminary articles of perpetual peace propose University of Wisconsin-Milwaukee that: (1) No conclusion of peace shall be considered valid if it was made with a secret reservation of the material for future war; (2) No independently existing state, whether large or THE KANTIAN THEORY small, may be acquired by another state by OF PUBLIC INTERNATIONAL LAW inheritance, exchange, purchase or gift; (3) Standing armies will gradually be abolished Immanuel Kant seems so often to be right, in altogether; (4) No national debt shall be the eyes of contemporary philosophers and legal contracted in connection with the external affairs academics, that his writings have taken on a of state; (5) No state shall forcibly interfere in nearly scriptural authority. To find one’s views the constitution and government of another state; in Kant confirms their validity. To challenge and (6) No state at war with another shall permit Kant implies reactionary prejudice, or pointless such acts of hostility as would make mutual iconoclasm. John Rawls has made so many new confidence impossible during a future time of Kantians in the academy that every scrap and peace (All translations here and henceforth by letter of the great Königsberger's work has its H. B. Nisbet in Kant, Political Writings own scholiast, and school of eager exegetes. (Cambridge University Press 1970)). Finally the commentators have turned even to Kant's short late essay on Perpetual Peace The first preliminary article forbidding the (1795), which closely follows a tradition of secret reservation of material for war reflects proposals deriving through Kant's model Jean- Kant's commitment to honesty. Honest states Jacques Rousseau (1761) from the Abbé‚ de that agree to peace would relinquish their Saint Pierre (1713) and William Penn (1693). capability for war. This preliminary article will The question addressed is how the different be impractical in a multipolar world of mutually nations of the world can live together in peace. distrustful powers. Full disarmament requires universal compliance and trust. In the absence By joining the gaggle of Kant interpreters I of either, prudent states will retain their do not intend so much to question their capability for war, while working to create the consensus, as to ask (of whatever Kant says): is necessary conditions for peace. Perhaps Kant's he right? I will briefly review Kant's proposals, first provision will be a necessary preliminary to considering them as actual policies, which might real peace, in the sense that complete and

ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999 44 • INTERNATIONAL LEGAL THEORY VOLUME 5 permanent peace (in its strongest sense) cannot together to prevent foreign borrowing seems exist without disarmament. As applied to unnecessarily harsh. Some states and contemporary international relations, the trusting populations may benefit from timely borrowing, renunciation of all material for war would be to fund the development of their local resources unwise, and likely to provoke avoidable and economies. Kant's view of debtors as conflicts between states. improperly enriched would-be imperialists reveals his conception of Britain as the typical Kant's second preliminary article of perpetual debtor nation. Regulated international peace, forbidding exchanges of national borrowing, by satisfying and empowering the territory, recognizes the fundamental principals poorer nations, may be an important force for of self-determination and cultural stability. Each world peace, because it promotes greater society has its own life and history, which would equality among states. be destroyed by transfer or amalgamation. Kant recognizes the folly of a single consolidated The fifth preliminary article of perpetual world empire. This clause is elegant, convincing peace comes closer to the substance of and true, but should not be read to prevent contemporary international law by banning federation. Kant simply endorses the stability of forcible intervention in the constitution or existing administrative borders and the doctrine government of another state. Kant's reasoning of uti possidetis juris. Each community or reveals his conception of states as moral separate republic must develop its own sense of persons, with their own political autonomy, the common good and consensus about justice, comparable to the private autonomy of real standing on its own cultural history. This does human individuals. This analogy supposes that not preclude a broader cosmopolitan citizenship just as individuals may foolishly harm that encompasses all humanity. themselves, without legitimating someone else's intervention, so every state or people may freely The third preliminary article of perpetual harm itself, so long as it does not injure others. peace, proscribing standing armies, follows from Accepting any intervention in a state's internal the first, concerning material for future wars. conflicts would (Kant supposes) make the Standing armies exist to fight, provoking autonomy of all states insecure. apprehension in others, expensive arms races, and the danger of prophylactic aggression. Kant Kant's attribution of moral identity and proposes a gradual disarmament, which might be autonomy to states would be justified, if one's possible in a just world of legitimate states, aim were simply to establish a peace between provided that they disarm together. Kant's states, preliminary to a more definitive further prohibition on the accumulation of public permanent settlement. If one's aim were justice, currency reserves (which he sees as equivalent however, the equivalence would fail. Just as to armies, since wealth can hire arms) makes individuals deserve liberty and moral autonomy, little sense. Governments need wealth and so too do nations, but only so long as states reserves of wealth to serve their citizens. stand in the place of the individuals that they Converting wealth to arms takes time, and even represent. State autonomy is derivative, and poverty cannot prevent rearmament when states depends (as Kant recognized) on the collective are determined to do so. right to independence and self-determination of the citizens behind it. Oppressive states that Kant's fourth article, forbidding a national disregard their citizen's welfare cannot claim to debt, follows from his fear of public wealth. speak for them, or to enjoy vicariously their Such prohibitions would impoverish the state, citizen’s rights to independence. In such without preventing war, and reflect an circumstances, other states may sometimes unreasoning fear of finance. Kant's subsidiary legitimately respond directly to appeals for help point that foreign debts may lead to war when from subordinated populations, against debtor nations cannot pay, has a kernel of truth oppressive regimes. in it. His solution that states should band

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Kant's confusion between the moral their mutual reform, and more definitive articles autonomy of individuals and the moral of peace. autonomy of states carries over to his prohibition of certain excesses or dishonesties in war. The Kant's Definitive Articles sixth preliminary article of perpetual peace rests of Perpetual Peace on Kant's assumption that a state of nature exists between nations, which lack a court of justice to Having established the minimum preliminary legitimate their wars of punishment (bella foundations of a perpetual peace in his initial punitiva) against illegal behavior. In such proposals, Kant described his three definitive circumstances, Kant suggests, wars represent a articles of perpetual peace, which establish the form of trial by battle, to be resolved by the formal relationships between nations, without judgment of God. Kant insists that such wars which states must necessarily regard each other must follow civilized procedures, in order to as enemies. Kant takes it as given that only a avoid a descent into total destruction through lawful (gesetzlich) state can be trusted. Only escalating mutual atrocities. states that share a legal civil state of government (bürgerlichgesetzlich Zustand) can live in peace. This last point makes a powerful argument in Otherwise, their neighbors must suppress them favor of the laws of war, which Kant rendered as law-abiding citizens properly suppress those almost ridiculous with his rhetorical and individuals who refuse allegiance to the transparently insincere reference to the so-called common civil society. Kant envisioned three judgment of God (sogenannt Gottesgericht). types of legal (rechtlich) regimes, depending War is not a trial, but mutual destruction, to be respectively on civil right (Staatsbürgerrecht or avoided at almost any cost. Different parties to ius civitatis), international right (Völkerrecht or the conflict will be more or less at fault, and ius gentium) and cosmopolitan right more or less to blame. Victory goes to the (Weltbürgerrecht or ius cosmopoliticum). stronger (and often less justified) party, without Persons without such constitutions live in a state any reference to justice. Justice plays a part in of nature with respect to each other, Kant appealing for allies, or justifying measures taken believed, and so of perpetual war. to win the war. Kant's sixth article misses the decisive importance of justification (which he Kant's three definitive articles of perpetual recognizes elsewhere). When states are at war, peace follow from his conception of rechtlich or the more justified party may legitimately take gesetzlich institutions, without which there stronger measures to win or resolve the conflict would be no peace. First, all states’ civil than the less justified party, whose duty lies (bürgerlich) constitutions must be free and more in submission and restitution, than republican. Second, international right vigorous pursuit of war. (Völkerrecht) must derive from a federation of free and republican states. Finally, cosmopolitan Kant's preliminary articles look less to the right (Weltbürgerrecht) will be limited to justice than to the stabilization of the existing conditions of universal hospitality. All three of world order. Taken separately and individually these lawful regimes depend on Kant's his articles hardly apply to contemporary conception of freedom, in its older republican international relations, where international sense. For Kant rightful freedom (rechtlich institutions and finance have completely Freiheit) requires submission only to those laws supplanted the structures of his simpler era. to which one could actually give one's consent. Taken collectively, however, Kant's preliminary Rightful equality requires that all possible legal articles indicate a useful strategy for achieving obligations apply equally to all. Kant insists perpetual peace, by first stabilizing the current these innate and inalienable rights (angeborne, administrative borders of states, then moving zur Menschheit notwendig gehörende und toward justice. Peace precedes justice in Kant's unveräusserliche Rechte) forbid all relations of formulation, but justice justifies and perpetuates unequal power among citizens, except the peace, when peace between states facilitates distinctions derived from merit alone.

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nuanced descriptions of the republic, as did Kant's powerful commitment to this natural earlier authors such as James Harrington and the law of reason determines his conclusion that Baron de Montesquieu. Nothing Kant says only republican constitutions can sustain a contradicts their more detailed republican perpetual peace. Kant's conception of the prescriptions for checks and balances, elected republic depends on the equal freedom senates, and life terms for judges. Kant simply (Freiheit) of all members of society; their equal does not address the details of republican dependence upon the civil law (Gesetz); and government, in an essay dedicated to the their equality (Gleichheit) as citizens. relationship between states. Republican constitutions are the only constitutions that citizens as equals could agree The position of the republic as the basis of upon, because republics spring directly from the world peace becomes much clearer in Kant's concept of right (Rechtsbegriff), and require the second definitive article of perpetual peace, consent of their citizens to any public decision. basing his ius gentium on a federation of Kant believed that republican citizens armed republics or federal free states. This international with the vote would reject war as pernicious to constitution would correspond to the civil their own well being, while non-republics constitution of its several member states, by embrace war, to enrich those in charge. securing the rights of each state against the others. Kant emphatically rejects the possibility These last remarks might lead (have led) of an international or world state. He wants a some commentators on Kant to confuse the Völkerbund, not a Völkerstaat. The difference republican constitution with democracy. This lies in maintaining each people’s separate would be mistaken. Kant followed Rousseau and identity in separate republics. Each republic his classical sources in believing that must be an equal member of the international democracies will always be despotic, unless they federation of peoples, just as every person must separate their legislative and executive powers. be equally a citizen of his or her separate Republics, Kant believed (in common with his component nation, within the federation. contemporary James Madison and most other self-styled republicans of the period), will Kant had no patience for disorganized combine the separation of powers with (gesetzlos) peoples, without republican representation or election to executive offices, so government, and did not see why he should that each public officer remains a servant of the accord any respect to disorganized states that state. Kant suggested that the absence of reject the republican federation. Lawless states representation will always result in despotism of like lawless persons naturally express the inborn one, a few, or the many, which amounts to a depravity of universal human nature. state of war, in which no one's rights are (Bösartigkeit der menschlichen Natur). Kant observed. believed that only republican structures of government will bring out the moral capacity of Kant's first definitive article confirms his human nature sufficiently to overcome this commitment to justice as the basis of perpetual natural propensity to vice. Even after peoples peace. Kant rightly concedes that there will be acquire a lawful internal constitution (eine no peace or safety for the subjects of any state rechtliche Verfassung), Kant believed that they that disregards the inalienable republican civil would continue to need a permanent overarching rights to freedom, equality and law. This adds pacific federation (foedus pacificum), to very little to his underdeveloped concept of preserve each state’s proper freedom, as a republican government, which is restricted (in separate lawful republic. Perpetual Peace) to requiring representation, the separation of powers, and implied doctrines of This idea of federalism, gradually extending popular sovereignty and the rule of law. Kant's to encompass all states, seemed attainable to contemporaries John Adams, Alexander Kant, if ever a powerful and enlightened nation Hamilton and James Madison provided more could form itself into a republic, as a beacon of

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justice to the world. The recent examples of maintain. Protecting republican states against France and the United States may have given outsiders (and each other) requires an some encouragement to Kant's expectation that international federation of republican peoples, to other states would flock to form a federation govern their mutual relations. Finally, this around powerful republics, if given the chance. republican federation will fail to develop or In any case, Kant firmly believed that reason survive without an attitude of universal mandates free federalism (frei Föderalism) as hospitality. the ultimate shield of individual rights. Just as individuals must renounce their savage and These three categories of natural law or right lawless condition through public coercive laws, (Recht) do not represent three levels of duty, as so states must accept an enduring and gradually one might expect, but rather, two related systems expanding republican federation to prevent war. of obligation, overlayed (or undergirded) by a separate and dominant requirement, applicable Kant's proposal may seem somewhat unreal, to both. The ius civitatis (concerning the right in the midst of global lawlessness and war. In of citizens) and the ius gentium (concerning the fact, Kant contemplated an arrangement right of peoples) contain within them the considerably short of his ideal world republic universe of public obligations. The ius (Weltrepublik or civitas gentium). Kant's second cosmopoliticum embodies the one simple rule definitive article of perpetual peace clarifies the that leads (in the end) to developing the rest. first by extending republican principles from Not doing harm to others by simply avoiding individuals to peoples. Ideally the international hostility will lead to community, Kant believed, federation should have its own enforcement as people naturally seek the mutual benefits of mechanisms, and public coercive laws. Lacking commerce and association. People will wish to these, Kant hoped that a weaker federation interact, and doing so without hostility will would at least limit the force of universal human produce the benefits of natural right, within and inclinations to injure others, independence of between all peoples. law. Kant's Definitive Articles of Perpetual Peace The third definitive article of perpetual peace constitute the essence of his proposal, concerns cosmopolitan right (Weltbürgerrecht or unrestricted (unlike the preliminary articles) to ius cosmopoliticum), which is to say, right specific circumstances of time and place. The growing out of the relationship between threefold project of (1) republican constitutions, individuals (and states) as citizens of the (2) republican federation and (3) general (arms- universal state of mankind. Kant would restrict length) non-hostility between states (and cosmopolitan right to the rule of universal individuals) provides a convincing model for hospitality. This requires non-hostility to foreign developing peace and justice from a common states and foreign nationals, so that no one kills, foundation of republican politics. A enslaves or maltreats them, without good reason. weltbürgerlich attitude on the part of persons Kant believed that foreigners may legitimately and states will lead to better mutual be excluded from entry into independent understanding, interdependence, and peace; republics (unless their lives are in danger), but whether such an attitude will ever actually expected that friendly overtures would lead to develop remains to be seen. Kant's commerce, and gradually to a cosmopolitan republicanism is convincing and morally sound constitution (weltbürgerlich Verfassung). (though politically underdeveloped), but the non-republican institutions of existing states, Kant's conception of right thus depends on and their less than weltbürgerlich attitude, make three imagined codices of unwritten law it seem a bit utopian, so long as existing regimes concerning the ius civitatis, ius gentium, and ius maintain their less-than republican political cosmopoliticum respectively. Natural law views and institutions. implies fundamental human rights, which only a republican civil constitution can secure or The Guarantee of Perpetual Peace

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among vigorous rivals, within and between Kant would have responded to this criticism states. Thus nature wisely separates the nations, by reiterating his argument that peace and justice and Kant would keep them separate, to maintain both depend, and will in the end both arise and justice, in perpetual peace. prevail, from the inborn structures and desires of ordinary human nature. This optimistic doctrine As separation prevents despotism, Kant supplies what Kant identified as the ultimate believed, so to commerce assures unity and guarantee (Garantie) of perpetual peace. Kant peace among nations, by offering an economic supposed that inherent structures of nature incentive against war. These two forces supply would bring humans into concord, even against nature’s guarantee of lasting peace. Using their will, so that the moral ends which people rivalry, self-interest (to support ought in any case to pursue, as prescribed by Staatsbürgerrecht and Völkerrecht) and avarice reason, will also naturally result from their self- (to support Welbürgerrecht), nature maintains seeking greed and ambition. Kant suggested that peace by the universal mechanism of natural all three types of public right ius civitatis, ius human inclination. This is not to say, however, gentium, and ius cosmopoliticum will follow that justice and peace now actually exist (or ever eventually from nature, with or without any have done). Rather, Kant hopes to establish that deliberate human commitment to justice. nature supplies the materials for perpetual peace, to be gradually channeled and implemented, by In order to secure their own ambition, with those who have the wit to do so. mutual protection against each other’s avarice and self-interest, people will form states (Kant This constitutes Kant's secret article of supposed) with civil laws to bind them. To perpetual peace. Philosophers have studied and strengthen their own state’s interests against the explained the mechanisms of peace in rest, even wicked citizens and states must seek government and international relations. Kant republican confederations. Kant embraced the suggests that governments should make use of republican conclusion, already well articulated this wisdom (without attribution). He does not by James Harrington, John Adams, and many want philosopher kings, or king philosophers but others, that even a nation of devils would only that kings should secretly implement the gradually establish the checks and balances of philosophers’ insights, in pursuit of perpetual republican government, to control each other’s peace. Power corrupts, and corruption misleads self-interest by the oversight of the rest, so that the public councils. But philosophers have no ambition would counteract ambition, and public power, which frees them to think, and better interest rule, despite the avarice and bad understand the state. intentions still eagerly raging in each private devil’s own secret heart. Kant's secret article supplies some of the deficiencies of his earlier guarantee, by This mechanism of nature (Mechanism der acknowledging the extent to which nature Natur), by which selfish inclinations are requires guidance in realizing its ends. The naturally opposed to one another, compels whole history of the world reveals a procession submission to coercive laws, which in turn of violence and injustice so seldom interrupted, preserves peace (as Kant believed), both within as to undermine the plausibility of natural and between states. Good morals follow good providence or nature's benevolence to man. laws, and dissipate without them. Thus nature Nature supplies the materials for human felicity irresistibly determines that right will without creating the political structures to (eventually) gain the upper hand. (Die Natur support them. The science of politics determines will unwiderstehlich, das Recht zuletzt die the best system of political checks and balances Obergewalt erhalte). Virtue and good will do to harness nature in pursuit of republican not matter so much, according to Kant's government, and social justice for all. Creating conception of nature, because right follows from just constitutions requires active philosophy and selfish conflict, through an equilibrium of power human intervention. The greatest weakness of

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Kant's essay on perpetual peace is his lack of instead on the application of reason to universal specificity about the structures needed to secure principles of freedom, to justify their public and preserve a lawful republican state. actions and political constitutions to others. This follows the normal international practice of The Identity of International Law, public argument by reference to public right Morals, and Politics (öffentlich Recht). Even when states and lawyers argue insincerely, their insincere references to Kant's sanguine reliance on nature's public right and justice confirm these concepts’ guarantee of perpetual peace reflects his greater irreducible value, as sources of international interest in moral rather than in political obligation, applying Kant's fundamental questions. Both appendices to his essay on principle of right, which is always to act in such perpetual peace explain all politics (international a way that you could wish your maxim to be the and international), as applied branches of right universal law. or justice, for which morals supply the theoretical foundation. This means that morals Kant's conceptions of political, international and true politics never conflict. Politics, properly and cosmopolitan right are the moral constructs understood, realize the absolutely binding moral of reason, and universally binding. He laws by which all actions ought to be governed, considered that genuinely republican (echt- so that anyone who wishes to know her or his republikanisch) government will best secure the own civic duty may do so, simply by consulting obedience and prosperity of the people, so long the inborn reason that all of us possess. Kant as politicians introduce it gradually, seizing knew that practical political maxims must favorable circumstances, without recourse to consider the actual structure of human nature, hasty, or violent innovation. Kant expected that including its weaknesses. Good Kantian peace would follow justice, when the general politicians and statesmen will continuously will (allgemeine Wille) discovers the concept of examine their political institutions, to ensure right (Rechtsbegriff), among or between peoples, their conformity with natural law or right on the basis of freedom and equality. “Fiat (Naturrecht). iustitia, pereat mundus” -- for Kant justice came first, and everything else would follow. Kantian politicians will not, of course, destroy the existing bonds of any political or Kant's formula for perpetual peace required cosmopolitan community before they have first that the state should have an internal something better to put in their place, but they constitution organized in accordance with pure will always continue to maintain a course principles of right. (eine nach reinen towards eventual reforms to realize political Rechtsprinzipien eingerichtete innere justice (die nach Rechtsgesetzen beste Verfassung des Staats) and second that it should Verfassung). Kant hoped that politicians would unite with other states to form some sort of rule as much as possible in a republican federal union (allgemein Staat). Morality, law (republikanisch) manner, while adjusting the and politics go together. Without justice, there constitution gradually to be itself more will be no peace. Kant was confident that republican, and just. Kant concluded that any human reason will gradually apply moral natural law respecting constitution (rechtliche), principles to secure justice, helping right to even if it is not very lawful (rechtmassig) itself, increase, since all right comes from justice will be better than no constitution at all. (Gerechtigkeit). Revolutions and invasions should not occur, unless they will make things better. This identity between international law, morals and politics demands a more detailed Kant observed that international society does description of republican institutions, at both the not possess and should never obtain the despotic national and the federal level, than Kant is ever right to formulate coercive laws for mechanical willing to provide. To claim (as Kant does) that application by lawyers. Nations must rely republican institutions will find and implement

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justice, requires some description of what lawful (rechtlich) state already exists. Kant's republican institutions will look like. Perpetual conception of public right (öffentliches Recht) Peace avoids the specifics. Kant's specificity requires this lawful state or republic. Because lies instead in his moral formula or calculus, to Kant believed that only a federative association act in such a way that you could wish your of states can lawfully support freedom, he maxim to be the universal law. This leaves the concluded that politics and morality will never politics too vague to reach any definite agree, until the federative union (Verein) is in understandings, or to resolve any disagreements place. about justice, which may arise between citizens or states. Kant's transcendental concept of public right, requiring publicity, captures a central element of The Transcendental Concept republican justice, which recognizes the of Public Right importance of public debate. Republics test ideas by deliberation, and confirm them by votes. Kant concluded his essay on perpetual peace Governments that act without submitting their by supplying a new more detailed formula with policies to public examination will make which to calculate the content of public justice mistakes about justice, by misunderstanding the or right, which forms (as he understands it) the common good. Public deliberation clarifies only lasting basis of peace. Kant's conception of moral error by bringing all citizens’ experience public right depends on publicity as the final and observations into play. This true and measure of law and justice. Kant's rule holds convincing argument for popular sovereignty that all maxims of action that cannot be made becomes nonsense, however, when Kant twists it public are wrong, while all maxims that require to protect despotism. To publicize one’s planned publicity in order to succeed must be right, in revolution again non-republican tyrants would morals as well as politics. be suicide. This does not mean that revolutions should never happen. Secret plans against This formal attribute of publicness oppression will be justified, when republican (Publizität) epitomizes in a single phrase all deliberation would be subject to retaliation and Kant's philosophy of right, both ethical and violence. juridical. Kant argues that every claim of right must have this public quality. Concerning the The Kantian Theory of Public Staatsrecht or ius civitatis (for example), Kant International Law denies the right of rebellion against unjust tyrants, because such a principle could never be Reviewing Kant's arguments in Perpetual openly accepted, as part of a civil constitution. Peace reveals the extent to which his conception Similarly, in the case of Völkerrecht or ius of right depended on natural law. Kant's two gentium, Kant denies that states can ever maxims of universality and publicity provide the legitimately renounce their commitments within natural law basis for all legitimate government the pacific federation, because no state would policy. The only legitimate governments (Kant willingly have joined the federation in the first believed) would be those that implemented place, knowing that others could withdraw. republican institutions, as part of a republican Kant explained that Weltbürgerrecht or the ius federation, to realize the moral rules that Kant's cosmopoliticum follows the same principles, by moral maxims endorsed. Some preliminary close analogy with international law. Kant did articles would be necessary to make the world not imagine that everything public is necessarily ready for republican government, but even just, but rather that nothing political can ever be without them Kant expected that justice would just, that cannot be publicized, or acted on eventually prevail. openly. The central element of Kant's essay on Publicity discovers morality or rightness best perpetual peace (his list of definitive articles) is (including international right), only when a also his best and most convincing argument.

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Kant believed that ius civitatis should rest on of "international law; and (2) his lack of a lucid whatever political institutions (including the rule definition of "the state." of law) will best realize objective morality and justice. This is true. He argues for a ius gentium The Kantian-theory of international law, that will protect and coordinate these republics sometimes referred to as "Neo-Kantian legal in one large federation. This seems sensible. theory," in some ways resembles the legal Kant suggests that the ius cosmopoliticum theories developed by the late Hans Kelsen should encourage mutual non-hostility between (1881-1973). In his work, The Pure Theory of states. So it should. What Kant lacks is any Law, Kelsen generally suggests that public workable description of what will count as international law should be regarded as similar republican forms of government, when applied to the norms of municipal state law and should to the actual constitutions of states. be observed as norms of the same single universal legal system. (Hans Kelsen, In this Kant resembles John Locke, useful for Introduction to the Problems of Legal Theory, the principles, but not for forms of government. 107-25, (Bonnie Litschewski & Stanley L. When Kant does offer specifics, they are weak Pawlson trans., Clarendon Press)(1992); Hans and unconvincing (as in his preliminary articles), Kelsen, Reine Rechtslehre-mit Einem Anhang: or pernicious (as in his strictures on revolution, Das Problem der Gerechtigkeit, 328-45 (2nd ed. forbidding secrecy against tyrants). Kant's 1976)). The English translation of Professor argument for republican government is just and Kelsen's theory on the unity of international law convincing, but he never gives sufficient details and state law put his view very clearly: about what a republic will look like. This leaves would-be Kantians strangely at sea, committed The only given is a cognitive unity of all law; to principles of liberty and justice, without clear that is, one can conceive of international law techniques for making them real. To find the together with the state legal systems as unified rechtliche Verfassung, republican system of norms in exactly the same way as one internationalists most look to other sources, is accustomed to regarding the state legal system as unity This view, shared even by proponents which is why they so seldom agree on what their of the dualistic doctrine, reflects the master would want. The Kantian Theory of epistemological requirement that all law be international law is a republican theory of considered in one system, that it be considered natural law, left deliberately vague, to encourage from one and the same standpoint as an integral the gradual development of republican whole in itself. Because legal cognition aims to institutions, in a world of illegitimate despots, comprehend as law - to comprehend within the and lawless tyrannical states. category of the valid legal norm - material characterized as international law, as well as Mortimer Sellers material presenting itself as state law, legal University of Baltimore cognition sets the very same task for itself that natural science sets for itself: to represent its School of Law object as a unity. The negative criterion of this unity is non-contradiction, a logical principle that also applies to cognition in the realm of A CRITIQUE OF "KANTIAN INTERNATIONAL norm. (Introduction to the Problems of Legal LAW" Theory, supra, at 111, 111(f), 112.)

I. Preliminary Points However, Kelsen's influential legal theory is The Conception of "International Law" contrary to other current theories on the and "States" relationship of public international law, municipal law, and state practice, such as Harry Gould approaches "Kantian "monism," "dualism," "inverted monism" and International Law" from a hypothetical "the theory of harmonization."(D.P. O'Connell, viewpoint, which prompts two criticisms International Law, 39-42 (1970)). concerning: (1) Gould's lack of a lucid definition

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"International Law" and the Legal Theory international law" (internationales Privatrecht of Public International Law or droit international privé). That is the branch of private (civil) municipal law of States that Gould does not provide a lucid definition of governs the operation of conflict rules that "international law." He, and the other writers control the application of foreign private (civil) referred to in his monograph, including Kant, law by a court of the forum in cases containing refer without making a qualified definition of the foreign elements, (Ian Brownlie, Principles of exact legal nature of the norms or authority Public International Law, 302 (5th ed., 1998)), referred to as "law" or "international law." This using connecting factors stated in Latin as "lex is an important issue because the legal creature domicilii" and so forth, originally located by the referred to as "international law" during the German legal scholar, Friedrich Carl von lifetime of the German philosopher Emmanuel Savigny (1779 -1861) under the aegis of the Kant (1724-1804), was not identical to the legal conflicts theory, seeking a proper "seat" (Sitz), norms contemporarily defined as "public for every legal relationship. international law" (Völkerrecht or droit international public) (Pierre-Marie Dupuy, Droit The legal theory behind conflict of laws is, International Public, 1-23 (5th ed., 1999); Hans therefore, not cognate with the legal theory of Kelsen, Auseinandersetzungen zur reinen public international law. Moreover, based on the Rechtslehre - kritische Bemerkungen zu unique legal characteristics of the conflicts rules Georges Scelle und Michel Virally - Im Auftrag of conflict of laws, which operate by the des Hans Kelsen - Institutes aus dem Nachlass operation of designed connection factors, rather Herausgegeben von Kurt Ringhofer und Robert than being substantive rules of a subject-matter Walter, (1987); Gerhard van Glahn, Law Among legal nature the legal theory of conflict of laws Nations, 2-4 (7th ed., 1996); Alfred Verdross is virtually barren of social values. (Konrad and Bruno Simma, Universelles Völkerrecht - Zweigert, Zur Armut des internationalen Theorie and Praxis 1-58 (3d ed. 1984)). Privatrechts an Sozialen Werten [On the Death of Social Values in Conflict of Laws], in 37 The object of Kant's legal philosophical Rabels Zeitschrift fur auslandisches and analysis appears to have partially consisted of internationales Privatrecht 435, 435-52 (1973)). the ancient hybrids of "public" and "private" Thus, legal theories founded on the conflict of (civil) bundles made up of local or domestic laws are by the virtue of their distinctive "legal" norms that are sometimes referred to as nucleus bound to be different from legal theories Roman Law or the jus gentium. (Karl-Heinz of public international law. The attempts by Ziegler, Die romischen Grundlagen des Continental Law's conflict of law scholars, (1-4 europaischen Volkerrechts, in Jus Commune, 1- Ernst Frankenstein, Internationales Privatrecht 27 (1972)). In developing his legal theory, Kant (1926), to develop private international law and did not make a clear distinction between the legal theory on public international law and different legal, moral, ethical, or pious norms legal theory have generally been considered derived from contemporary religious canons. futile. He also did not distinguish between "private" (civil) and "public" municipal "legal" norms The methods of legal theory used by Kant and "international" norms in his theoretical are partly akin to the methodology and legal observation of norms, which in his opinion, theories emanating from the use of constituted the proper "rule of law." contemporary comparative legal methods by legal scientists or by local judges adhering to Many legal philosophers during the methods governed by principles of comparative eighteenth-century through the twentieth-century law. This particularly applies to the legal method were primarily occupied with this entirely or technique referred to as "characterization," different branch of law referred to by Anglo- which is a legal institution common to both American legal scholars as "conflict of laws" but private international law and comparative law. by most Continental Law writers as "private In utilizing characterization, the comparative

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law legal scholar or municipal court judges must proper historical qualification, be applied to frequently investigate and compare legal modern international legal theory. The theories of more than one country in reaching systematic discussion of legal history is his decision on proper characterization of a generally approached from the viewpoint of legal institute foreign to the law of the forum to modern public international law, partly because be applied by virtue of the conflicts rules of the most writers must make their subject forum. (Ulrich Drobnig and Manfred understandable for modern readers. Rehbinder, Rechtssoziologie und (Auseinandersetzungen zur Reinen Rechtslehre, Rechtsvergleichung (1977); Richard Hyland, supra). This is why international legal scholars Comparative Law, in A Companion to mistakenly presume the continued historical Philosophy of Law and Legal Theory 184, 184- existence of an international legal personality 99 (Dennis Patterson ed., Blackwell pub., known recently as "States." (Arthur Nussbaum, 1996); Konrad Zweigert and Hein Kötz, Geschichte des Völkerrechts [Translation of a Einfuhrung in die Rechtsvergleichung auf dem Concise History of the Law of Nations] (Herbert Gebiete des Privatrechts (3d ed., Mohr 1996); Thiele-Fredersdorf trans., 1960)). The better Konrad Zweigert and Hein Kötz, Introduction approach is taken by the German historian of to Comparative Law (3d ed., Clarendon Press public international law Grewe in his work on 1998); The Use of Comparative Law by Courts the history of public international law. In his (Ulrich Drobnig & Sjef van Erp eds., Kluwer writing, Grewe refers to some of the Law Int'l. 1999)). international legal personalities preceding the birth of the modern "States" under the aegis of Summing up at this point, the legal theories the legend, "Power-Associations" developed by Kant are based on analogies made (Herrschaftsverbände). (See, Wilhelm G. from municipal legal norms, which are norms of Grewe, Epochen der Völkerrechtsgeschichte 19- entirely different legal constitutions than the 98; Karl-Heinz Ziefler, Völkerrechtsgeschichte public international legal norms that are __ (1994); cf. Alfred Verdross, Abendlandische recognized today. Therefore, the application of Rechtsphilosophie - Ihre Grundlagen und Kant's legal theory to modern juridical Hauptprobleme in Geschichtlicher Schau (2d international state relations appears incongruous, ed., 1963)). while the fundamental subject-matter of his inquiry is erroneous (ab initio) in light of the In summation, the thrust of this preliminary modern developments of public international criticism of Gould's work is, at the very least, legal theory. necessary to analyze his hypothesis of a "Kantian International Law" under a "double- The "State" as an Object of Legal Theory hypothetical approach" using preliminary points of Public International Law as criticism. Thus, Kant's legal theory cannot be applied to modern public international legal The "State," as referred to by Gould, did not theory without these two apt preliminary exist in the modern sense of the concept when precautions or reservations. Kant developed his legal theory. Hence, the international legal system in which Kant II. Rigging Gould's Hypothesis developed his legal philosophy is transposed but not entirely different from the international The main weakness of Gould's approach is personas appearing on the modern stage of based on the use of unqualified analogies from public international law (e.g., the upsurge of the Kant's legal theory, which leads to the adoption gigantic multinational private (civil) of a double-analogy that is contrary to Kant's corporations, the intergovernmental legal theory, which was originally mostly corporations of private law and the founded on the use of analogy from private établissements publics internationaux). The (civil) legal sources of ancient municipal law. legal personalities referred to as "States" by Additionally, even though Gould attempts to Gould and the scholars he cites cannot, without make a distinction between legal theory, as

ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999 54 • INTERNATIONAL LEGAL THEORY VOLUME 5 stated by Kant, and the natural law school legal Gould's legal analysis of Kantian "self-help" theory, he still observes, "states as both legal and is contrary to the current understanding of moral persons." Gould's "physical" or "factual Article 2 (4) of the United Nations Charter and situation," "object," "legal creature" of study is does not have sufficient underpinnings to likewise a legal personality more akin to legal correlate to Article 51 of the United Nations persons created under municipal law, and thus Charter (collective self-defense). Moreover, an improper "object" of analysis under the legal Gould's legal arguments in favor of Kantian theory of public international law. "self-help" have the same legal tendency, as all similar arguments seeking their legal nucleus in Gould attempts to differentiate between the canon of self-preservation of State and so Kant's legal theory and the natural or moral forth, to elude entirely the United Nations' legal theory using a lexical dissection, rather mechanism for securing peace (Article 2 (4) and than the more appropriate subject-matter Chapter VII of the United Nations Charter). His analysis employed by many other legal arguments also appear to lay a rather convenient philosophers and publicists. (Hans Kelsen, legal foundation for recent embargoes enacted Allgemeine Theorie der Normen 62-69, 140-41 by the United States against Cuba and Iraq after (Kurt Ringhofer & Robert Walter eds., 1979); 1991. Hans Kelsen, General Theory of Norms 79-86, 175-76 (Michael Hartney trans., Clarendon My main criticism of Gould's proposal of a Press 1991); Johannes Strangas, Kritik der "Kantian international law" is that it Kantischen Rechtphilosophie - Ein Beitrag zur reinvigorates the naturalistic theory on basic Herstellung der praktischen Philosophie "rights" and "duties" of States, which has been (1988)). properly refuted by the late Professor Hans Kelsen in his analysis of the now defunct “Draft Gould challenges the analogy garnered from Declaration on Rights and Duties of States” the legal institutes found in domestic law of prepared by the International Law Commission. many or most States in public international law Professor Kelsen properly states that: (I.L. Oppenheim, International Law - A Treatise (H. Lauterpacht eds., 7th ed., Longmans, Green There is an incontestable primacy of the duty & Co. 1948)), despite the fact that Article 38 (1) over the right. The norms of general (c) of the Statute of the International Court of international law impose duties upon the states Justice recognizes "general principles of law and by so doing they confer rights upon others. recognized by civilized nations" as a source of If the duties are correctly formulated, the formulation of the corresponding rights is public international law. The source of public superfluous. Only if a duty is defined by a international law recognized under Article 38 formula that is too general, must exceptions be (1)(c) has the inherent constitution of being an stipulated and these exceptions are frequently exceptive source of law despite the fact that presented as "rights." What is called "right" public international law recognizes, with the of self-defense stipulated in Article 51 of the exception of peremptory norms (jus cogens), no Charter, is nothing but a restriction of the duty particular hierarchy of sources. The exceptive stipulated in Article 2 (4). (Hans Kelsen, The nature of law under Article 38 (1)(c) does not Draft Declaration on Rights and Duties of make it appear to provide a solid foundation for States, 44 American Journal of Int'l. Law 259, general conclusions of the sort adopted by 264-65 (1950)). Gould. This criticism applies to Gould's Applying Professor Kelsen's conclusion to references to "self-help" or "self-defense" from Gould's arguments in favor of his Kantian legal the legal institutes of most municipal State law theory of international law (e.g., Gold's as Kantian norms of public international legal reference to: "self-help," "moral law," "natural theory applicable to freedom, sovereignty and law," " the state of nature and the state of right," the principle of non-intervention of States. "new legal duties," "I [i.e., Gould] shall restrict myself to the military security of the state ," "jus

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necessitatis," [Gould in citing Laberge and world affairs. This standpoint inspires Gould's Tesón] there will be “no aggression in the understanding of the function and status of the Confederation (Republic) Kant envisions," United Nations in modern public international "unilateral action," and so forth) it appears that law. His approach is quite understandable since some of the "rights" or "duties" may not be more the U.S.A. is arguably the mightiest actor in essential than any other "duties" or "rights" that public international affairs. Gould failed to address. Moreover, they have in the form given to them by Gould rather the Summing up the criticism of Gould's character of being paraphrases of cliché‚ or hypothetical international legal theory based on postulate of international law such as his Kant's legal theory, it would appear that a analysis of the "duty" to comply with the majority of the pitfalls may befall those scholars "moral" rather than "legal" commands of of legal theory who approach public international law by the virtue of itself without international law from the standpoint that the proper or practically realizable enforcement use or misuse of power by states, including thereof - at least under the aegis of "positivism" military power, may ignore the existing positive legal theory of public international law. legal norms of the public international law of peace. Gould's reference to Article 61 and 62 of the Vienna Convention on the Law of Treaties, May III. Synopsis 29, 1969, in support of a certain "innate equality" in favor of freedom of States to act, is Kantian legal theory is akin to many of its also partially of the same origin as the unilateral contemporary legal theories, including the State-power or Superpower-oriented "American theories of the German legal philosopher Georg School of Public International Law." The legal Wilhelm Friedrich Hegel (1770-1831). doctrine of pacta sunt servanda under Kant's (Regarding Hegel and public international law, "impermissibility of lying" is derived from especially on the supremacy of the State, see, municipal law in addition to being imbued by Ignaz Seidl-Hohenveldern, Völkerrecht 26-29, the religious dogmatism of natural legal theory. 40-41 (9th ed., 1997)). These legal theories of Gould appears to accept this aspect of the centuries past laid the theoretical foundation for Kantian legal theory as applicable to modern the early twentieth-century bellicose canon of public international law, even including its public international legal theory referred to as pious elements. However, Gould does not "self-preservation" - the militant nucleus of self- attempt to set forward proper legal rhetoric of help, self-defense and other related doctrines of this Kantian doctrine and its use in public public international law of war (Oppenheim, international law. The concept pacta sunt supra). servanda is one of the few norms of "general principles of law recognized by civilized The inherited practical dangers of Kantian nations," that transcends the legal character of legal theory originates from Natural Law's more public international legal norms, albeit without or less discredited theory of "rights" and "duties" its orthodox elements. (Bin Cheng, General of States, serving mainly as a legal justification Principles of Law as Applied by International for military action, instead of satisfying the Courts and Tribunals (Grotius Publication obligations of the U.N Charter by using 1987)(1953)). peaceful means to resolve international disputes (Hans Kelsen, The Law of the United Nations - It appears to me that Gould's arguments have A Critical Analysis of its Fundamental Problems their origins in the “American School of Public 87-121, 219-295, 359 (1951)). Kant's antiquated International Law.” Many of his arguments, legal theory supports the militaristic "right" of ostensibly founded on Kant's legal theory, states to self-preservation, a "right" that was advocate the current international policy and later to be abused by the most totalitarian legal opinion of the United States government regimes of the twentieth-century (far beyond the applied to scholarly and politically disputed bounds of the doctrine abus de droit ), Josef

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Stalin's USSR (Hans Kelsen, Theorie pure du classroom or other educational use as long as (1) droit (Charles Eisenmann trans., Dalloz 1955); copies are distributed at or below cost, (2) the Josef Mayinge, Hegels "Rechtsphilosophie" and author and the ILT are identified, and (3) proper ihre Bedeutung in Der Geschichte der notice of the Society's copyright is affixed. Maristischen Staats - und Gesellschaftslehre (1983)) and Adolf Hitler's Third Reich. Mailing address: International Legal Theory, Center for International and Comparative Law, Sovereignty of reason dictates that "Kantian University of Baltimore School of Law, 1420 International Law" is an inapt foundation for the North Charles Street, Baltimore, Maryland future development of public international law 21201-5779 because of its tendency to serve as an improper Electronic mail: [email protected] legal justification for the warlike unilateral acts Telephone: (410) 837-4532 of states. This theory is founded on international Telefax: (410) 837-4396 legal concept of natural law, which undermines the peaceful cooperation that should be Editorial communications: The editors developed under the aegis of the United Nations welcome unsolicited manuscripts, or comments Organization. on forthcoming lead articles, which are posted on the ILT web site. The legal foundation of "Kantian International Law" is based on the author's Manuscripts should be submitted in duplicate misinterpretation of legal norms that are and on a computer disc, or by e-mail. They pertinent to the public international legal order, should not contain any citations (except and on a mistaken identification of the objects parenthetically). of the legal norms that properly govern public international law. Business communications should be directed to American Society of International Law, 2223 Halldör E. Sigurbjörnsson Massachusetts Avenue, NW, Washington, D.C. Max-Planck Institute for 20008. Foreign and Private International Law (Hamburg) Subscriptions: The subscription rate is $25 per year for U.S. Subscribers and $35 for foreign subscribers. Single issues are $15 per copy. All International Legal Theory (ISSN 1527-8352) is members of the ASIL Legal Theory Interest a biannual publication of the American Society Group receive ILT as one of the benefits of of International Law Interest Group on the membership. Theory of International Law. ILT facilitates discussion and the exchange of ideas concerning the philosophical foundations of contemporary © 1999 by the American Society of international law. Each issue contains one lead International Law article, and several comments, discussing international legal theory.

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ASIL • 2223 MASSACHUSETTS AVENUE, NW • WASHINGTON, DC 20008 • 1999