Kant and the Theory and Practice of International Right. Georg Cavallar
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the ruler or legislator is supposed to engage in a kind of mental or intellectual experiment, asking if one’s intended law or action is compatible with the will of the majority of the citizens. Perhaps my interpretation is too far-fetched: however, I believe that Kant was eager to look for any elements in Prussian politics (theory and practice) that would point away from plain despotism.
Given that the sovereign wishes to reform the state, autocracy is more effective than aristocracy or democracy in approaching republicanism (VIII, 353, 5–8; VI, 340). At the same time, Kant points out that autocracy is very dangerous for the people, ‘for it is extremely conducive to despotism’ (VI, 339, 14–15). He also wants to make sure that people are not satisfied with a form of sovereignty that is, by the standards of his own theory, only provisional. Thus he implicitly ridicules Frederick’s claim that absolute rule is the best form if the ruler is competent. Criticizing a similar theory by the Swiss-born moderate royalist Mallet du Pan, Kant argues that to reason that ‘whatever is best administered is best’ amounts to a tautology (VIII, 353, 28; VI, 339, 19–25).
Domestic policy II: the separation of powers and the politics of reform
With one feature of republicanism, that of the separation of powers (VI, 228–9), Frederick agreed in principle and mostly followed in practice. Kant’s hope for progress is, above all, a hope for legal progress through continuing improvement of political constitutions. Consequently, Kant seeks evidence for this thesis in his own age, and finds it in the reforms of enlightened absolutism.
In 1722, Frederick William I established the general directory (Generaldirektorium), a central institution for domestic, military and financial affairs. Some years later he added a cabinet ministry for foreign affairs. The third major institution was the Privy Council for legal matters. Jurisdiction and administration were not separated, and jurisdiction gradually lost some of its functions to administration. Legal reforms in Prussia can be divided into two phases.14 The first occurs between 1746 and 1756, when Gross-kanzler Samuel von Cocceji reorganized the legal system by trying to unify rather than change it. The content of the law remained the same. Reform was part of the general effort of the absolutist state to centralize the government. The king put the Codex Fridericianus Marchicus, the new code of criminal procedure, into effect between 1747 and 1749, which the Corpus Juris Fridericianum remained unfinished. Cocceji’s death and the outbreak of the Seven Years War ended the first ‘wave’ of reforms. After 1780, Johann Heinrich Carmer reformed the legal system; Carl Gottlieb Suarez, the main author of the Allgemeines Landrecht für die Preussischen Staaten (1794), and Ernst Ferdinand Klein assisted him. Until that time, the court for farmers was the Patrimonialgericht, which their masters controlled. Legal equality was non-existent. A fair trial was impossible if defendant and judge were one and the same person or institution. In 1781, another new criminal code, called Corpus Juris Fridericianum, was adopted. The main task of the second wave of reform was to codify a new statute-book. In 1784 Carmer finished the first parts of Entwurf eines allgemeinen Gesetzbuchs für die Preußischen Staaten (1787). It was published and presented to the public to be evaluated and criticized. The second part of the draft appeared in 1785. Frederick commented, ‘laws must be short and should not be too extensive’, and, in a lecture before the Mittwochsgesellschaft in June 1788, Suarez referred to this comment as one of Frederick’s more famous marginalia.15
After Frederick had died in 1786, the impetus of reform was lost. The Allgemeines Gesetzbuch für die preussischen Staaten (1791) was scheduled to become effective on 1 June 1792. However, Frederick William II, frightened by events in revolutionary France, suspended it. The Allgemeines Landrecht was finally put into effect because of events in foreign policy.16 In 1793, Prussia acquired additional Polish territories in the second partition, and unifying the country with a common legislation seemed a prudent choice. The general law of the country reaffirmed the traditional structure of society. Attempts to improve the predicament of farmers were not successful. Serfdom was only partly abolished. Nevertheless, the Allgemeines Landrecht was influential, and it kept most of the constitutional elements that its authors, representatives of the Berlin Enlightenment, had suggested. Frederick had initiated the legal reforms that culminated in the Allgemeines Landrecht after his death.
In theory, Frederick proclaimed legal equality, one of Kant’s central demands (VIII, 291–4; VIII, 350–1; VI, 314). Before the court, prince and farmer should be equal.17 This theory was almost completely put into practice, giving Prussia a fair legal system. Civil rights, religious and intellectual freedom, the right to own property and land were protected.18 In the Political Testaments of 1752 and 1768, Frederick stated that he was not willing to interfere in legal procedures. Instead, he wanted to promote the independence of the courts, ‘for in the courts the laws should speak and the ruler should be silent’.19 Again Frederick agreed with the political doctrine of Kant and many other Enlightenment philosophers. The rule of law characterized the ideal political system. Kant claimed that the republican constitution was ‘the only lasting political constitution in which the law is the sole ruler (selbstherrschend), independent of all particular persons’ (VI, 341, 1–2; cf. VI, 355, 20–1). There was one major difference between Frederick and Kant. The former justified the independence of the courts with pragmatic reasons. No ruler could deal with all details of a legal dispute. Above all, the ruler should invest his time in other branches of the government.20 Frederick was apparently thinking about trade, the economy, the military and foreign affairs. He dedicated almost two-thirds of his testaments to his army and foreign relations. In contrast to Frederick, Kant wanted to derive the independence of the courts from the principle of the separation of powers (VI, 338–9). This principle was in turn derived from the idea of the original contract. Frederick was reluctant to accept this theory of the social contract. He did not include mutual recognition of certain rights in principle, but allowed exceptions that were justified pragmatically. Frederick claimed it was necessary to intervene in institutions ‘from time to time’, because institutions inevitably degenerate.21 Frederick was convinced that this was the case when he interfered in the Miller-Arnold dispute. A miller named Johannes Arnold from Züllichau had appealed to the king after having been rejected by courts of the first and second level of jurisdiction. Frederick intervened four times in the legal procedure. This interference provoked Kant’s protest, if only in an unpublished reflection (XIX, 607, 21–4; see below). The example illustrates the deep-rooted incompatibility between Kant’s legal doctrine, which refers to principles of right, and Frederick’s flexible policy, which relies on ‘maxims of prudence’. Still, Kant could argue that Prussia developed gradually towards a state of affairs which he described in his writings. Significantly, he downplayed Frederick’s violation of the separation of powers, comparing it to a ‘heavy hailstorm’ that does not diminish beautiful weather (XIX, 607, 24). Kant’s and Frederick’s theories of the state even converge in the promotion of welfare institutions for the poor and sick. Frederick planned to pay pensions to the widows of his officers (after all, there were plenty).22 Although Kant is frequently seen as an advocate of the minimal state, this interpretation is mistaken. Kant believed that the state has a juridical duty – albeit not a strict one – to care for the needs of its citizens (VI, 326).23
Kant was of course aware of the legal reforms going on in Prussia. He corresponded with Ernst Ferdinand Klein, the co-author of the Allgemeines Landrecht and a member of the Mittwochsgesellschaft.24 Klein asked whether limitations on legal freedom had to be abolished immediately. In his opinion, the people should be set free gradually (letter to Kant, 22 December 1789; XI, 118). Prussian laws were filled with arbitrary restrictions. Klein held that they could be excused, but not fully justified. Klein’s ‘excuse’ was pragmatic. Enlightenment was (the result of) a gradual process, and abrupt changes would be ineffective against the force of popular opinion. Like Carl Gottlieb Suarez, Klein argued for the independence of jurisdiction. In 1787, Klein claimed in an essay on the legal system of Austria that it was ‘depressing’ for a people if it realized that ‘life, freedom and property’ depend on the whim (Laune) of a single person.25
Kant’s concept of reform was not very different from Klein’s. Principles of natural right should not be realized ‘at once and by violent measures’