Of the Accordance of Politics with Morals according to the Transcendental Conception of Public Right
We may think of Public Right in a formal way after abstracting from all the matters to which it is applied in detail, such as the different relations of men in the State, or of the States to each other, as presented in experience; and this is the way in which jurists usually think of it. But apart from the matter of public right, there remains only the form of publicity, the possibility of which is implied in every expression of right; for without such publicity there would be no justice, this being thinkable only as what is publicly declarable, and hence without this publicity there would be no right, as right is only administered or distributed by it.
This character of publicity must belong to every mode of right; and, as it can easily be judged whether it accompanies any particular case, and whether it can therefore be combined with the principles of an agent, it furnishes a criterion, which is at once presented a priori in reason and which it is easy to use in experience. Where it cannot be combined with the principles of an agent, the falsity and wrongness of a pretended right can thus be immediately recognised, as if by an experiment of the pure reason.
Abstraction being thus made from everything empirical that is contained in the conceptions of national and international right, (such as the evil disposition of human nature which makes coercion necessary) the following proposition arises, and it may be called the transcendental formula of Public Right.
'All actions relating to the rights of other men are wrong, if their maxim is not compatible with publicity.'
This principle is not to be regarded merely as ethical, and as belonging only to the doctrine of virtue, but it is also to be regarded as juridical and as pertaining to the rights of men. For a maxim cannot be a right maxim which is such that I cannot allow it to be published without thereby at the same time frustrating my own intention, which would necessarily have to be kept entirely secret in order that it might succeed, and which I could not publicly confess to be mine without inevitably arousing thereby the resistance of all men against my purpose. It is clear that this necessary and universal opposition of all against me on self-evident grounds, can arise from nothing else than the injustice which such a maxim threatens to everyone. Further, it is a merely negative maxim, in so far as it only serves as a means of making known what is not right and just towards others. It is like an axiom which is certain without demonstration. And, besides all this, it is easily applicable; as may be seen from the following examples and illustrations of Public Right.
1. Public Right of the State. As regards the right of the State, and in particular its internal right, we may look at the application of this formulated principle to a question which many hold it difficult to answer, but which the transcendental principle of Publicity quite easily resolves. The question we refer to is as to whether Insurrection is a right means for a people to adopt in order to throw off the oppressive power of a so-called tyrant? Non titulo sed exercitio talis. The rights of the people are violated in the case supposed, and no wrong would be done to the tyrant by his dethronement. Of this latter position there may be no doubt, and yet it is wrong in the highest degree, on the part of the subjects, to pursue their rights in this way; and if they did so, they would have as little right on their side to complain of injustice should they fail in this conflict and were afterwards subjected to the severest punishment in consequence.
In this case much may indeed be advanced for and against either position if the attempt is made to establish it by a dogmatic deduction of the principles of right. The transcendental principle of the Publicity of public right can alone spare us all this prolixity of discussion. For, according to that principle the people would only have to ask themselves before the institution of the civil contract whether it would dare to make the maxim of the proposal of an occasional insurrection publicly known. We easily see that were it made a condition at the founding of a political constitution that force was in certain circumstances to be exercised against the supreme authority, the people would have to arrogate to themselves the right of power over that authority. But were it so, that would no longer be the supreme authority, or if both powers were made a condition in the constitution of the State, the establishment of such an authority would really not be possible, although this was the intention of the people. The wrongness of rebellion therefore appears plain from the fact that the maxim upon which it would proceed, were it to be publicly professed as such, would make its own purpose impossible. It would therefore necessarily have to be kept secret. This latter condition, however, would not be at all necessary on the part of the head of the State. The sovereign power may freely announce that every form of insurrection or revolt will be punished with the death of the ringleaders, however the latter may believe that it was the sovereign who first violated the fundamental law. For if the sovereign is conscious of possessing irresistible supreme power (and this must be assumed in every civil constitution, because he who has not power enough to protect any member of the people against every other has no right to command him), he need have no anxiety about frustrating his own purpose by the publication of his maxim. And it is quite consistent with this position to hold that, if the people succeed in a rebellion, the sovereign must then return to the position of a subject. But he will not then be entitled to begin a new rebellion with a view to his own restoration; and neither should he have to fear that he will be called to account for his former administration.
2. International Right.—There can only be a system of International Right on the assumption that there is really a state of right as the external condition under which right can become real among men. And this is so because, as public right, it already implies the publication of a common will assigning to every one what is his own. This status juridicus must arise out of some sort of compact which, unlike that from which a State springs, cannot be founded upon compulsory laws, but it may, in all cases, assume the form of a permanent free association; and this we have already indicated as assuming the form of a Federation of the different States. Without some jural organisation to connect the different persons, moral or physical, in an active form, and therefore in the state of nature, there can be no other right but private right. Here again comes in a conflict of Politics with Morals when the latter is regarded as a doctrine of right; and the criterion of the publicity of maxims again finds an easy application to it, but only on the condition that the States are bound by a compact with the object only of maintaining themselves in peace with each other, and not at all in the intention of acquiring new possessions. The following instances of antinomies arising between Politics and Morals may be here given, along with their solution.
- (1). 'If one State has promised something to another, whether it be assistance, or a cession of country, or subsidies, or such like, the question may arise as to whether in a case on which the well-being of the State is dependent, it may withdraw from keeping its promise, on the ground that it would have itself to be regarded as a double person: first, as a sovereign, from being responsible to no one in the State, and, secondly, merely as the highest political official, from having to give account to the State; and then the conclusion is drawn that what it had become responsible for in the first quality, it may be discharged from in the second.' But if the sovereign of a State should proclaim openly such a maxim, it is evident that every other State would naturally avoid it, or would unite with others to resist such pretensions; and this proves that politics, with all its craftiness, would frustrate its own purpose by such an application of the principle of publicity; and consequently any such maxim must be wrong.
- (2). 'If a neighbouring Power that has grown formidable by its aggrandisement, excites anxiety, it may be asked whether, because it is able, it will also resolve to oppress others, and whether this gives to the less powerful States a right to make a united attack upon it, although it may as yet have committed no injury?' A State which would affirmatively proclaim such a maxim, would only bring about more certainly and rapidly the evil that is dreaded. For the greater power would anticipate the lesser; and, as regards their union, it would be but a weak bundle of reeds against it, if it knew how to practise the rule divide et impera. Such a maxim of political prudence if publicly declared, would therefore necessarily frustrate its own purpose; and it is consequently wrong.
- (3). 'If a small State, by its geographical position divides the connection of a greater State which requires this connection in order to its own preservation, is such a State not entitled to subject the smaller State to itself, and unite it to its own territory?'—Here again it is easily seen that the greater State cannot possibly let the maxim of such a procedure be previously known; for either the lesser States would combine early against it, or other powerful States would contend with it for this prize, and so the maxim would make itself impracticable by its very publicity. This would be a sign of the wrongness of the maxim, and it would be so in a very high degree; for the smallness of the object of an injustice does not prevent the injustice manifested by it from being very great.
3. Cosmopolitical Right.—As regards Cosmopolitical Right, I may pass it over in silence here, because on account of its analogy with International Right its maxims may, in a similar manner, be easily indicated and estimated.
The principle of the incompatibility of certain maxims of International Right with their publicity, thus furnishes us with a good criterion relative to the non-agreement of Politics with Morals viewed as the Science of right. But it is necessary also to be informed as to the condition under which its maxims agree with the Right of Nations. For it cannot be inferred conversely, that those maxims which are compatible with publicity are on that account also right, because he who has a decided supremacy does not need to conceal his maxims.—The condition of the possibility of a Right of Nations generally, is that there does exist a prior state of right. For without this there is no public right, but every kind of right which could be thought as existing without it (as in the state of nature) is merely private right. Now we have seen above that a federative union of States, having for its sole object the removal of war, is the only condition compatible with their freedom, and in which their rights can have existence in common. Hence the agreement of Politics with Morals is only possible in this connection, by means of a federative union, a union which is also necessarily and really involved a priori in the principles of right. And all public policy can have a rightful basis only by the establishment of such a union in its greatest possible extent; and apart from this end, ingenuity is but unwisdom and disguised injustice. Yet there is such an ingenuity, and its bastard policy has a casuistry of its own that might defy the best Jesuit school to outrival it. It has its mental reservation, as in the composition of public treaties by using such expressions as may at will be interpreted to suit the occasion and in any interest: such as the distinction between the status quo of fact and the status quo of right. Again it has its probabilism, when it construes evil intentions in others, or even the probabilities of their possible superiority into a justifiable reason for undermining other peaceful States. And, finally, it has its philosophical sin (peccadillo or bagatelle) when it maintains that the absorption of a small State is an easily pardonable triviality, if a much larger State thereby gains to the supposed greater advantage of the whole.
A pretext of all this is furnished by the double-dealing of Politics in relation to Morals, according as it employs one or other of its departments for its own purposes. Now, in fact, both philanthropy and respect for the rights of men, are obligatory as duties. But the former is only a conditional duty, the latter is unconditioned and absolutely imperative; and he who would give himself up to the sweet feeling of well-doing, must first be fully assured that he has not transgressed it. Now Politics easily accords with Morals in the former sense (as Ethics) by making it incumbent on men to give up their right to their superiors, but it is otherwise when Morals is taken in the second sense (as Jurisprudence or the Science of Right) before which politics must bow the knee. Here Politics finds it advisable not to trust at all to any compact, but rather to take away from right all reality, and to reduce all duties to mere benevolence. This artifice of a mode of policy that shuns the light would be easily frustrated by publicity being given to such maxims, if it only dared allow the philosophers to give publicity to their maxims.
From this point of view, I shall now propose another principle of Public Right, which is at once transcendental and affirmative, and whose formula would be as follows:
'All Maxims which require Publicity in order that they may not fail of their end, are in accordance with both right and politics united with each other.'
For if these maxims can only attain their end by publicity, they must be conformable to the common end of the public, which is happiness; and it is the special problem of politics to put itself into agreement with the public, and to make the people contented with their condition. But if this end is to be attained only by publicity, as the means of removing all distrust of political maxims, these maxims must also be in harmony with the right of the public; for the union of the ends of all is only possible in the harmony established by right. I must, however, defer the further development and explanation of this principle till another occasion. But it may be already seen that it is a transcendental formula from the fact that all the empirical conditions of happiness, as the matter of the law, are removed from it; and it merely has regard to the form of a universal legislation.
If it is a duty to realise a state of public right, and if at the same time there is a well-grounded hope of its being realised—although it may only be by approximation to it that advances ad infinitum then Perpetual Peace is a fact that is destined historically to follow the falsely so-called Treaties of Peace which have been but cessations of hostilities. Perpetual Peace is, therefore, no empty idea, but a practical thing which, through its gradual solution, is coming always nearer its final realisation; and it may well be hoped that progress towards it will be made in more rapid rates of advance in the times to come.