Kant and the Theory and Practice of International Right. Georg Cavallar

       2 • Kantian International Right: Background and Paradigm Shift

      The eighteenth-century background

      The 1990s saw an unprecedented boom of congresses, books and articles on Kant’s essay Zum ewigen Frieden (1795), his theory of international relations and doctrine of international right.¹ While this part of Kant’s philosophy was often ignored in the past, it has gained more attention of late. In addition, it is also often highly praised. Michael W. Doyle sees Kant as ‘one of the greatest of liberal philosophers’; Daniele Archibugi calls the peace essay ‘the most … significant work of juridical pacifism’; Fernando Tesón believes that Kant’s accomplishment in international relations theory is ‘magnificent’; and Howard Williams and Ken Booth agree with Chris Brown that Kant is ‘the greatest of all theorists of international relations’.²

      This chapter provides some background information of Kant’s theory of international right and its unique position in eighteenth-century Enlightenment thought. I start with an outline of so-called ‘international relations’ in Europe during Kant’s lifetime. European international relations of the eighteenth century are usually subsumed under the misleading heading ‘Westphalian model’.³ The congresses of Münster and Osnabürck, the first European multilateral diplomatic gatherings, produced the Treaties of Westphalia in 1648, which ended the Thirty Years War. The treaties did away with imperial (Habsburg) hierarchy within the Empire and attempts at European hegemony, ended papal influence in politics, and tried to resolve the ‘religious issue’ (the denominational disputes between Catholics, Lutherans and Calvinists). The congresses were one important step in a long-term process where the traditional imperial vertical model was replaced by the modern horizontal interstate model. For the major powers, sovereignty meant the right to go to war whenever it seemed appropriate. Eventually, namely in the nineteenth century, the sovereign state as the prototype of international actor evolved, with central concepts such as territorial integrity and non-intervention at its core. Classical European international law of the eighteenth century, often called ius publicum europaeum, was different. It gradually abandoned the just-war theory of the Middle Ages and focused instead on an elaborate doctrine of the right to make war. Modern European war between states was bellum iustum ex utraque parte, ‘just’ – or rather legitimate – on both sides.⁴ This ius ad bellum was rooted in the principle of sovereignty. War was the ultima ratio regum, the last means of the kings to pursue their rights if they believed they had been violated. In practice, it was up to the king alone to decide if a violation had actually taken place.⁵ Still, there was some sort of order and some community interest: ‘The Peace of Westphalia failed to establish a comprehensive order, but it did include some elements of a hypothetical international order.’⁶ In Kantian terms, the European countries had left the state of nature, but failed to enter a full juridical condition. Several wars were fought against Louis XIV from the 1670s onwards to check his alleged ambitions for a ‘universal monarchy’ and to keep an evolving and precarious balance of power.⁷ The peace settlements of 1713–15 did not modify existing arrangements. War was not seen as an inherent evil or as an endemic problem of the European order. The settlements were ‘a victory for the principle of anarchy against hegemonical designs; they were not a victory for peace’.⁸ The peace treaty of Utrecht turned European balance of power into a principle of international law, or rather of the Droit public de l’Europe. The ‘universal society’ many writers referred to was still de facto a European society of Christians who had – to a certain degree – accepted religious tolerance among them as indispensable. Politicians referred to the balance-of-power doctrine to justify interventions and acquisitions such as the partitions of Poland in 1772, 1793 and 1794. Kant ridiculed this doctrine as ‘pure illusion’: it was too fragile to establish a lasting peace; it could not overcome the state of nature (VIII, 312, 29–33). On the other hand, Kant accepted that there was an entitlement to maintain a balance of power in the state of nature (VI, 346, 22–3). According to Kant, the absence of enforceable international right allows states to use military power and form alliances in order to secure their external freedom; however, this entitlement is only provisional. Kant’s position seems contradictory. It does make sense if we keep rights and entitlements, the state of nature and the juridical condition, apart.⁹

      Eighteenth-century wars were rather limited, although sometimes wars of destruction were fought and attempts were made to make states disappear. In general, however, rulers did not want to risk their expensive professional armies, followed certain rituals and obeyed manners and politesse even in battle. Whereas going to war was usually not seen as a crime, acts in a war were subject to certain juridical norms. The international society was state-centred. As Vattel put it, the law of nations was ‘the science of the rights which exist between Nations or States, and of the obligations corresponding to these rights’.¹⁰ In theory, this implied some normative ideas: that states were moral persons and had the same basic rights, that obligations were reciprocal, and so on. Violations of these principles did occur, the partitions of Poland probably being the most prominent example. The concept of equality among states was to a large extent based on fiction.¹¹ Finally, it must be kept in mind that for several reasons the shorthand ‘Westphalian world order’ is quite misleading. The centrality of the peace of Westphalia has to be challenged. Even before the treaty, many European states had in fact and de jure been sovereign. After Westphalia, some non-state actors did remain (partly) sovereign, or state sovereignty as a principle was ignored. All things considered, the peace treaties of Westphalia were a benchmark and key texts for inter-state relations up to Kant’s time.¹²

      By the time of Kant, the subjects of European international relations were territorial states that had profoundly changed since the Peace of Westphalia, and that continued to do so. Princes established a political system labelled absolutism and later ‘enlightened absolutism’: they restricted the influence of the estates and the churches and built up standing armies and the bureaucracy. Their states were usually economically independent units (see chapter 1 on Prussia as a case in point).

      In the course of the eighteenth century, many international lawyers turned away from natural rights theories towards positive international law. They also moved beyond the traditional focus on the ‘just war’. The question of the justice of the cause was progressively neglected, and war was seen as a political conflict. Lawyers emphasized rules that limited the conduct of war, specified diplomatic rituals, protected civilians and gave rights to neutral parties. Carl Schmitt called this Hegung of the war (diminution and mitigation; if you put war into a Gehege, then you look after it and try to reduce its dangers).¹³ Warfare changed profoundly only during the French Revolution, due to the formation of a citizens’ army, economic mobilization, tactical innovations