Kant and the Theory and Practice of International Right. Georg Cavallar
permitted. The king attempted to preserve the hereditary aristocracy, while Kant wanted to replace it with ‘a nobility of office’ based on merit (VIII, 350).
Nevertheless, Frederick’s Prussia was not a ‘closed’ society. Some social mobility was possible within and between the corporate structures of the Old Regime.51 Kant himself is a good example of a poor student from ‘the plebeian depths’ who obtained a respected faculty position at Königsberg University.52 Others, with the help of a university degree and patronage, became clergy or bureaucrats. Pietism set the foundation for the modern concept of professionalism and, by the 1770s, the arguments for talent over birth had prevailed. Kant supported this development in his essay on ‘Theory and Practice’ (1793), advocating a political system that provided the citizens with the opportunity ‘to reach any degree of rank […] through one’s talent, one’s industry and one’s good fortune’ (VIII, 292, 21–3).53 Yet this was a development Frederick hardly supported, and it was rather an indirect result of the ‘freedom of the pen’ that the king was willing to grant. Again, Frederick’s social policy was conservative and reasserted the dominance of the aristocracy.54
Kant argued that enlightened absolutism’s concept of the end of the state was mistaken. It lent itself to despotism, as the ruler tended to deprive citizens of their rights in order to make them happy: ‘The sovereign wants to make the people happy as he thinks best, and thus becomes a despot’ (VIII, 302, 10–11; cf. 305–6). According to Kant, the proper hierarchy is just the other way round: above all, the sovereign has to secure the rights of the citizens, who promote their own happiness the way they think fit. The patriotic government is based on juridical freedom, whereas the paternal government is despotic and founded on the principle of happiness, with the subjects being treated as ‘immature children’ (VIII, 290–1).55
From Kant’s perspective, another weakness of enlightened absolutism was the dependence of the political system upon one single person – the king – whose opinion was decisive. The king might grant or deny freedom of the press, depending on his personal preferences. There was almost no ‘constitutional restraint’ nor any system of ‘checks and balances’; the rights of the people were not guaranteed by a written constitution. This became clear in the notorious Miller-Arnold dispute. Kant commented not only on Frederick’s reforms, but also on the famous event that triggered their second phase. The miller Johannes Arnold was rejected by courts of the first and second level of jurisdiction, then appealed to the king (see above). Frederick launched a public relations campaign, intervening four times in the legal procedure, insulted the judges involved (‘Shut up, you scum’) and put them in jail, notably without court trials. Frederick’s PR campaign was successful. Commentators compared him with King Solomon, but later it turned out that Arnold’s protest was unfounded. As a result, Frederick resembled Don Quixote tilting at windmills rather than the wise Jewish king. Apparently he wanted to be seen as a fighter for the weak and oppressed, but in this case he fought on the wrong side. As Arnold’s complaint was completely unfounded, the judgement in the case was reversed after Frederick’s death.56
Ignoring the king’s propaganda, Kant criticized Frederick’s conduct with formal legal arguments. Frederick violated one of the key elements of the ‘spirit’ of republicanism, the separation of powers. The supreme power arbitrarily interfered with the activities of the courts. Kant wanted to see the episode as an exception to the rule (XIX, 607, 21–4). However, it suggests that Frederick’s autocracy was deficient, since it left room for arbitrary decisions. In Kant’s legal philosophy, a representative democracy is the ideal that accords with the spirit and letter of republicanism. An autocracy with the sovereign governing in a republican manner is merely a transitory stage. In Perpetual Peace, Kant gives us the impression that the ‘spirit’ of republicanism would do; in the Contest of Faculties, published three years later (1798), he is more outspoken. Only the republican constitution corresponds with the idea of justice, and as long as it has not been realized, it is ‘in the meantime … the duty of monarchs to govern in a republican … manner, even though they may rule autocratically’ (VII, 91, 12–14). The term vorläufig (for the time being) suggests that autocracy in a republican manner, including enlightened absolutism, is a mere transitory stage. The goal is the ‘pure’ and ‘true’ republic. This republic is identical with representative, constitutional democracy, where a people is ‘literally asked for its consent’, and those who obey the law also legislate (VII, 90–1; VI, 340–1; XXIII, 342, 27–9; around 1797). Using Pogge’s terminology, we can say that the state of enlightened absolutism (partly) realizes the consistency principle, namely that ‘rational persons ought to coexist under a system of constraints ensuring mutually consistent domains of external freedom’. However, only a republic carries out the consistency principle and the principle of universality. This system of constraints ‘ought to limit everyone’s external freedom equally – the constraints should be general and universal’.57 Kant’s historical example of a people ‘literally asked for its consent’, stated explicitly in an unpublished note, is the French Directory, which ruled from October 1795 to November 1799. Kant contends that the French republic was superior to the British system. The Directory had to go to the council – which represented the people – to gain permission to go to war (XIX, 606, refl. 8077). Perhaps Kant’s contention is historically inaccurate; what matters, however, is Kant’s legal principle, not his own historical example where he might have applied this principle inappropriately. In an autocracy with republican forms, there is nobody to ask for permission to go to war.
Kant’s reflection leads us to our last topic of analysis: foreign policy. Frederick did not care about the spirit or letter of republicanism in foreign policy decisions. There was only one person who had a say in whether or not the country would go to war. For that reason Kant’s defence of enlightened absolutism could only be limited. The control of foreign policy decisions by the people’s representatives called for a representative democracy.
Foreign policy
The eighteenth-century European state system was characterized above all by the ‘primacy of foreign policy’ (Ranke), numerous conflicts between the major powers, and a frequently ruthless scrambling for territories.58 Frederick was no exception (in spite of his name which means ‘rich in peace’); historians argue whether Frederick deserves the epithet ‘Great’. Friedrich Nietzsche suggested ‘the great thief’ as alternative title. Representatives of the European Enlightenment often appreciated his domestic policy, particularly the steps taken immediately after he ascended to the throne. The Marquis d’Argenson, French foreign minister from 1744 to 1747, was a representative example. His memoirs of 13 July 1740 stated: ‘Le roi de Prusse s’attire toujours les plus grands éloges.’59 This statement reflected the enthusiasm of intellectuals when Frederick abolished judicial torture, restricted press censorship and recognized religious toleration at the beginning of his reign. The king fostered a cultural renaissance that included revitalizing the Berlin Academy of Sciences with Maupertus and Euler.
Sympathetic observers became confused when Frederick started to conduct his foreign policy. His invasion of the Austrian province of Silesia in December 1740 violated eighteenth-century international law standards. The French philosophes were particularly upset that Frederick broke treaties with France twice (in June 1742 and December 1745). In August 1756, Frederick invaded neutral Saxony without a declaration of war and, in addition, he humiliated the royal family, relatives of the French Bourbons. Frederick’s conduct earned him the title ‘roi conquérant’.60 Finally, he probably inaugurated the First Partition of Poland (1772). Frederick’s performance was obnoxious by almost any moral or legal standard, whether of our own or of Kant’s century; as historian George Peabody Gooch has correctly remarked, ‘the rape of Silesia ranks with the partition of Poland among the sensational crimes of modern history’.61 There are many possible reasons why Frederick conducted an aggressive foreign policy. He himself admitted that he wanted to read about his deeds in newspapers and history books; he wanted to profit from ‘favourable conditions’; he desired more coherence for his scattered territories. It has also been argued that Brandenburg faced a deep structural crisis, and that foreign policy was aimed at mastering and overcoming it.62
Philosophers