Kant and the Theory and Practice of International Right. Georg Cavallar
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fighting the aggressor Napoleon to prevent a ‘universal monarchy’.
Rulers, their advisers and most lawyers were not really creative in overcoming this semi-anarchical arrangement. Coalitions like the one against Louis XIV (1701–14) were formed not in order to create a system of collective security but out of necessity. These coalitions quickly fell apart, sometimes even before the end of the war: ‘War was regarded as a fact of life and as a useful instrument of diplomacy, not as a problem.’15 Systemic and long-range insights into the nature of an anarchical system came from philosophers and some jurists writing about ‘the law of nature and nations’ (they came to be called ‘international lawyers’ in the nineteenth century).
Apart from Grotius, Emer de Vattel (1714–67) was the most widely read and influential international lawyer towards the end of the eighteenth century, especially in England and the United States. Drawing upon Leibniz and Wolff, Vattel postulated a ‘universal society of the human race’ as an ‘institution of nature itself, that is, a necessary result of man’s nature’.16 He favoured popular sovereignty and replaced the sovereignty of the prince with the sovereignty of the state and its moral personality: ‘The State is not, and can not be, a patrimony.’ ‘Such a society has its own affairs and interests; it deliberates and takes resolutions in common, and it thus becomes a moral person’17 – these and other specifications have clearly influenced Kant. Vattel’s international society was pluralist in nature. Order must be kept and state independence respected. In contrast to Grotius, and in accordance with most eighteenth-century state practice, Vattel advocated a humanized law of war. Wars should be mitigated, unarmed subjects should be protected, because wars are a relation between sovereign states, not their subjects.18 Vattel’s central dilemma, however, remained unsolved: what takes precedence, the rule of law or state sovereignty? Rejecting Wolff’s idea of a great republic (civitas maxima),19 Vattel settled for absolute state independence. His law of nations was almost without any sanctions; the distinction between just and unjust wars was delegated to the sphere of morality; only the unjust enemy could be forced (see also chapter 7 on the ‘unjust enemy’). Vattel, who seldom moved away from the political realities of his age, should be seen as the typical representative of mainstream European international law, with states as the principal actors, an emphasis on state sovereignty, and clear distinctions between law and morality, international and state law, and perfect and imperfect duties.20
Although Vattel partly prepared the ground for positivism in international law, he himself was rooted in the natural right tradition. Richard Zouch, Samuel Rachel, Cornelius van Bynkershoek and Johann Jakob Moser are usually assigned to the positivist camp, even though they kept many natural right elements.21 Most international lawyers rejected Hobbes as too extreme. Hobbes had claimed that natural right justified the validity and legitimacy of positive state or civil law: Lex naturalis omnes leges civiles iubet observari.22 Laws are valid in a state or commonwealth where the sovereign can enforce them. Their inherent moral or rational features are irrelevant: Auctoritas, non veritas facit legem.23 If laws cannot be enforced, they are useless, they belong to the ius inutile. According to Hobbes, the law of nations was a case in point.
Few eighteenth-century authors were willing to follow Hobbes. Samuel Pufendorf (1632–94) agreed that international law was part of natural right. He also accepted that states live in a condition of nature, another central Hobbesian thesis.24 Parallels soon end. For Pufendorf, this condition of nature was one of peace; there was some sort of rightful order among states. Christian Wolff (1679–1754) thought that this order was rooted in the civitas maxima, a hypothetical community of states, a society of nations based on their free tacit consent, but endowed with binding laws that could not be revoked.25 Wolff distinguished among four types of international right, ius gentium naturale, voluntary international law, one based on contracts and customary law.
If Wolff was a highly original international lawyer with an idealistic touch, he was surpassed by intellectuals, philosophers and writers without professional legal training. The middle of the eighteenth century experienced a boom in peace projects. The two most prominent authors were Charles Irénée, Abbé de Saint-Pierre, and Jean-Jacques Rousseau. Saint-Pierre advocated an international organization in his Projet pour rendre la paix perpétuelle en Europe (1713).26 The task of this organization was to guarantee security for each member. This would in turn change the mode of interaction among them. Problems would be solved by an international court of justice, not by war. All states would accept the status quo and promise not to try to change property rights. War could only be waged against a state that had been declared an enemy of the organization. With this sole exception, states were supposed to refrain from the use of force. Saint-Pierre realized that the structure of international relations had to be modified if the Hobbesian state of war and anarchy should be overcome. The federation was designed to enable states to replace one mode of interaction (namely war) by another set (namely majority vote and the rule of law).
Rousseau evaluated Saint-Pierre’s project twice, in the Extrait (1756/1761) and in the Jugement sur la Paix Perpétuelle (1756/1782).27 Like Saint-Pierre, he described the eighteenth-century European international system as a system of anarchy that lured countries into wars they sometimes did not want to wage, but that they thought they had to because of neighbours they perceived as enemies. For Rousseau, diplomacy was a tool of tyrannical rulers; war was one of its consequences. Similarly, trade among nations favoured dependence, inequality and thus conflict.28 Like Saint-Pierre, Rousseau advocated a permanent congress of deputies as the main instrument of an international organization. Going beyond Saint-Pierre, Rousseau’s Jugement was revolutionary. He attacked the European princes and their cabinets as the main causes of war. Princes were described as ruthless usurpers who wanted to expand their absolute rule at home and used wars to make themselves indispensable. In Europe, Rousseau saw ‘unfortunate nations groaning under yokes of iron, the human race crushed by a handful of oppressors’.29
Interpreters do not agree whether Rousseau saw a European international society as a desirable goal. According to one interpretation, his focus on the nation, his endorsement of patriotism and rejection of cosmopolitanism and the société générale demonstrate that he wanted to end international society: ‘Rousseau turns what Grotians and Kantians view as positive and desirable into a source of evil.’30 Others see Rousseau as a pacifist republican who offered a convincing outline of an international organization. According to this interpretation, he aimed at establishing some sort of ‘peaceful coexistence’ among economically independent, small republics. The states involved would share some common juridical principles and would thus be rather homogeneous.31 It is obvious that Rousseau developed different concepts in various writings; this may explain some of the divergent interpretations.
As far as we know, Kant had always cherished, admired and respected Saint-Pierre’s and Rousseau’s writings.32 Early references to Saint-Pierre go back to the period between 1752 and 1756 (XVI, 241). From 1760 onwards, Plato, Saint-Pierre and Rousseau were described as enthusiastic idealists who follow ideas that are true in themselves (XV, 210). In ‘Idea for a universal history’ (1784), Kant defended the concept of an international federation:
However wild and fanciful this idea may appear – and it has been ridiculed as such when put forward by the Abbé St Pierre and Rousseau (perhaps because they thought that its realization was so imminent) – it is nonetheless the inevitable outcome of the distress in which men involve one another. (VIII, 24, 28–33)
Saint-Pierre and Rousseau were ahead of their times. What they found out with the help of reason, ordinary humans learn by experience. Distress (Not could also be translated as ‘hardship’ or ‘adversity’) teaches us to renounce our ‘brutish freedom’ (VIII, 24, 34) and abandon the state of nature. The word ‘inevitable’ is highly problematical in the above quotation; it cannot easily be reconciled with Kantian criticism (see chapter 3 for more).
Kant admires Saint-Pierre and Rousseau, but he does not follow them blindly. Like Rousseau and unlike Saint-Pierre, Kant