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Hans Christian Siller - Kantian Constitutionalization

Hans Christian Siller - Kantian Constitutionalization

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Kant on Constitutionalization

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Kantian constitutionalization, foundational violence and the two sources of legitimacy Hans Christian Siller*


would be a contradiction of the very idea of democracy itself if a cosmopolitan democratic order were created non-voluntarily, that is, coercively"1. David Held

My aim in this paper is to identify and examine a deep conflict in Kant's views regarding the legitimacy of the processes leading to the establishment of a legal framework at the national level (national constitutionalization by means of revolution) and on the international level (cosmopolitan

constitutionalization by means of an expanding federation of republics). I will use Thomas Schelling's discussion of the 'Captain Ahab problem' to show that Kant is incapable of producing a coherent judgment of the legitimacy of these processes because of his inability to cope with the problem of foundational violence (the lawlessness of the violence exerted in the effort to establish a lawful order). I will conclude my discussion by proposing that this unresolved conflict in Kant reflects an unwillingness (that endures in contemporary political theory) to acknowledge as distinct the two sources of political legitimacy: consent and impartiality.

I. Kant on Constitutionalization
Kant was a Hobbesian to the extent that he too was convinced that civil society, i.e. submission to external, lawful coercion, was a necessary condition for men to secure themselves against violence and for ensuring that conditions prevail which make possible the mutual respecting of each other's rights. However, unlike Hobbes, he focused not on the establishment of a sovereign, but on the establishment of what we would today call the rule of law as the means for entering civil society:

*PhD candidate, Dept. of Political Science, Yale University, hans.christian.siller@yale.edu
1 Held, David: Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, CA: Stanford University Press, 1995), p. 231.

I. Kant on Constitutionalization

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[E]ven if we imagine men to be as benevolent and law-abiding as we please, the a priori rational idea of a non-lawful state will still tell us that before a public and legal state is established, individual men, peoples, and states can never be secure against acts of violence from one another, since each will have his own right to do what seems right and good to him, independently of the opinion of others. Thus the first decision the individual is obliged to make, if he does not wish to renounce all concepts of right, will be to adopt the principle that one must abandon the state of nature in which everyone follows his own desires, and unite with everyone else (with whom he cannot avoid having intercourse) in order to submit to external, public and lawful coercion2. One can find two topics in Kant's writings that touch on the issue of how such submission to lawful coercion can come about. First, Kant discusses the submission of individuals under the lawful condition of civil society. However, while he was adamant about the benefits of the lawful condition, he was notoriously shy about endorsing the means by which it could be brought about in a situation other than the state of nature – i.e. in a situation where the lawful condition can arise only by means of revolution against oppression. Second, he addresses the same issue at the level of states in his cosmopolitan writings on the establishment of an international lawful order. I will look at the latter first.

II. Cosmopolitan constitutionalization
In Perpetual Peace, Kant pours his derision and irony over the state-centric way of structuring the political coexistence of men which he perceived to be (dis)organized contrary to reason: We look with profound contempt upon the way in which savages cling to their lawless freedom. They would rather engage in incessant strife than submit to a legal constraint which they might impose upon themselves, for they prefer the freedom of folly to the freedom of reason3. The European states of his time who pride themselves of their civilized status, Kant goes on to argue, are however no less guilty of this irrational attachment to freedom of folly, for, as he argues in the Metaphysics of Morals, it is those very same European societies who pride themselves of their civility yet who in their relations among themselves shun any legal constraints on their actions and insist on relating to each other in no different manner than the savages they look down upon:

2 Kant, Immanuel: The Metaphysics of Morals, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), p. 137. 3 Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), p. 102f.

II. Cosmopolitan constitutionalization

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Firstly, in their external relationships with one another, states, like lawless savages, exist in a condition devoid of right. Secondly, this condition is one of war (the right of the stronger), even if there is no actual war or continuous active fighting [...]. [I]t is necessary to establish a federation of peoples in accordance with the idea of an original social contract [...]4. Peoples who have grouped themselves into nation states may be judged in the same way as individual men living in the state of nature, independent of external laws5. Kant took the idea of constitutionalization from the state to the global level and asserted that perpetual peace was only to be had if states were to replicate the constitutionalizing step taken by their citizens; i.e. if the international society of states established a global social contract and thereby submitted their relations to the supreme regulating power of a global legal order. However, even if Kant's reasoning of replicating the social contract at the global level in order to bring about the cosmopolitan condition he envisioned would seem to require the establishment of a world republic, Kant himself famously drew different political conclusions from his own argument: [T]his association must not embody a sovereign power as in a civil constitution, but only a partnership or confederation. It must therefore be an alliance which can be terminated at any time6. This federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature7. At the heart of the Kantian project of a pacified global order is the idea of a constitutionalization process which would result not in the creation of a federal world-republic, but in a federation of nation states. How can we make sense of the fact that Kant starts out by treating the cosmopolitan problem as structurally identical to the national problem of constitutionalization, but then ends up drawing distinctively different conclusions for the two respective cases which are claimed to be identical at the outset? One could argue that while it is true that only savages could prefer the 'freedom of folly to the freedom of reason', the way of achieving 'freedom of reason' is different in the two cases since the social

4 5 6 7

Kant, Immanuel: The Metaphysics of Morals, p. 165. Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 102. Kant, Immanuel: The Metaphysics of Morals, p. 165. Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 104.

II. Cosmopolitan constitutionalization

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contract establishing a lawful order has to solve different problems in the two cases. Indeed, one of the crucial differences between the lawful condition among individuals on the one hand and between states on the other consists in the fact that the ingredients of a social contract exist prior to its enactment: there typically already exists a people as well as political authority; the social contract device is used to imagine these existing entities as non-existent in order to confer legitimacy. In the case of a democratic nation state, the social contract serves the function of a legitimizing hypothetical for an already existing political authority over an already existing populace. At the global level however, the situation is radically different. On the one hand, applying the social contract device is less problematic here since it circumvents the fundamental democratic paradox of membership: constitutions are taken to express the consent of the people, yet in order to be able to express their consent and to politically constitute themselves as a people, the entity generated by the act of constitutionalization is a necessary prerequisite for that very process: the political community simultaneously actor and outcome of the constitutionalization process. At the state level, the allegedly consensual foundation of a legitimate political community seems to require recurrence to arbitrary historical delineations of membership. At the global level, however, this paradox disappears since the category of the outside disappears; the constitutionalizing community is allinclusive and hence boundless, yet at the same time already predefined prior to the act of constitutionalization and thus bounded already, since it coincides with “the community of man” which arises out of the “communal possession of the earth's surface” and the resulting need of men to “necessarily tolerate one another's company”8. At the global level, the social contract device thus should be easier to deploy than on the state level, since the non-exclusionary nature of the universal community of mankind as the pouvoir constituant settles the membership question and renders the recurrence to an arbitrary criterion of membership unnecessary. is

8 Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 106.

II. Cosmopolitan constitutionalization

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On other hand, however, using the social contract device at the global level is much more problematic with respect to political authority. It has been pointed out that if one were to regard the founding treaties of the European Union as its constitution, one runs into the difficulty that these treaties then at the same time create the Union as well as its constitution 9. Political authority at the state level usually doesn't require a constitution to be brought into existence – a constitution serves the purpose of legitimizing it where it already exists. On the international level however, a constitution would have to not only legitimize the supranational forms of political authority; it would need to create them to begin with. The social contract mode of constitutionalization is thus more problematic at the global level because of the double function it has to fulfill there. Because it does not only modify or legitimize existing political authority, but rather has to create it ex nihil at the same time, the range of possible disagreement is much broader. Moreover, a global social contract would have to be the result of an actual agreement arrived at by some kind of global political assembly, expressed on real paper and signed by real participants. On the global level, the social contract device provides the recipe for a real-life political process that has to happen in the future, rather than recounting a hypothetical political action that could have occurred in the past. In what follows, I will argue that Kant was very aware of the difficulties related to the bringing about of the cosmopolitan condition – and that this awareness can explain why he abandoned the world republican vision in favor of the idea of an ever expanding federation of republics. The David Held quote at the beginning of this paper expresses the conviction that the principles guiding institutional design must be identical with those guiding institutional implementation – the means must not to be incompatible with the ends they are supposed to promote. What was Kant's view of the issue? Did he believe that institutions must be non-contradictory with respect to their function and their genesis? Is it in his view necessary that the pacified lawful condition should arise peacefully and consensually – and

9 Murswiek, Dietrich: Maastricht und der pouvoir constituant. Zur Bedeutung der verfassungsgebenden Gewalt im Prozeß der europäischen Integration, Der Staat, vol. 11 (1993), issue 2, p. 162.

II. Cosmopolitan constitutionalization

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does he believe that the common co-occurrence of constitutionalization and revolutionary violence is incidental, or are we to think of their relation as systematic?

III. National constitutionalization and revolution
Kant wrote extensively on the right to revolution – and his views on the matter are exceedingly clear: according to him, there are no circumstances whatsoever that could ever justify rebelling against one's government. He expresses this position so regularly in his political writings that one must assume that he either strategically placed this assertion throughout his political writings for the censors 10, or that he did believe in the accuracy of this view and thought it to be of the utmost importance. In Theory and Practice he writes: [A]ll resistance against the supreme legislative power [...] is the greatest and most punishable crime in a commonwealth, for it destroys its very foundations. This prohibition is absolute. And even if the power of the state [...] has violated the original contract by authorizing the government to act tyrannically [...], the subject is still not entitled to offer counter-resistance11. Kant presses the same point in Perpetual Peace when he calls rebellion “in the highest degree wrong”12 even against an abusive tyrant. Similarly, in the Metaphysics of Morals he establishes the “duty of the people to tolerate even what is apparently the most intolerable misuse of supreme power”13. There are two closely related reasons for Kant's absolute rejection of any right to revolution. The first applies in cases where a revolution would overthrow an existing government – and Kant argues that such a revolution can never be justified since such a revolution constitutes “not change but a dissolution of the civil constitution; and the transition to a better one would not then be a metamorphosis but a palingenesis”14. The second reason consists in the fact that any version of a right to revolution must necessarily be incompatible with the supremacy of law: no system of laws can be supreme and at the same time contain a clause

10 see Reiss's dismissal of this view in the editor's postscript in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), p. 265. 11 Kant, Immanuel: On the Common Saying: 'This May be True in Theory, but it does not Apply in Parctice', in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), p. 81. 12 Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 126. 13 Kant, Immanuel: The Metaphysics of Morals, p. 144f. 14 ibid., p. 162.

III. National constitutionalization and revolution

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authorizing resistance to the law, thus making the subjects to the law the sovereign over its rule15. Kant provides the same argument in Perpetual Peace where he writes that any resistance to the supreme legislative power “would be dictated by a maxim which, if it became general, would destroy the whole civil constitution and put an end to the only state in which men can possess rights”16. Moreover, a maxim which authorized the use of violence against the ruler in some circumstances could not be publicly acknowledged without counteracting its purpose and thus violates the transcendental formula of public right17 - there can be no right to revolution, since the set of universalizable rules expressing such a right is necessarily empty. Kant's reasons for rejecting a right to revolution are strikingly similar to the Hobbes'ian concern of introducing irresolvable self-contradiction into any political system if it allowed people to remain judges of their own causes in some respects18. Allowing for such self-contradictions must lead to a reversal to the state of nature: “Such procedures, if made in to a maxim, make all lawful constitutions insecure and produce a state of complete lawlessness (status naturalis) where all rights cease at least to be effectual"19.

IV. Kantian undecidability
Both of Kant's arguments against a right to revolution ultimately rely on one single rationale – that revolution inevitably brings about a situation of undecidability. If a people were allowed to pass judgment on how the constitution should be administered, Kant argues, and if the people happened to disagree with the head of state on that question – who is to decide which side is right 20? Kant resolves this case of undecidability by asserting that one should always take the side of the head of state, so he consequently denies the people the right to revolution. This however doesn't mean that Kant would have felt comfortable with a people left at the mercy of its tyrant. Kant doesn't condemn the aspirations of an oppressed population – he merely holds that revolution is the wrong way of acting upon those aspirations. This becomes apparent

15 16 17 18 19 20

ibid., p. 145. Kant, Immanuel: Theory and Practice, p. 81. cf. Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 126f. cf. ibid., p. 81 and The Metaphysics of Morals, p. 145. ibid., p. 82. cf. Kant, Immanuel: Theory and Practice, p. 81.

IV. Kantian undecidability

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when he argues that if the revolutions in Switzerland, the United Netherlands or Great Britain had failed, we today would regard the execution of their celebrated founders as no more than the deserved punishment of great political criminals. For the result usually affects our judgement of the rightfulness of an action, although the result is uncertain, whereas the principles of right are constant. But it is clear that these people have done the greatest degree of wrong in seeking their rights in this way, even if we admit that such a revolution did no injustice to a ruler who had violated a specific basic agreement with the people21. What this passage demonstrates however, is that there is another level of undecidability inherent in revolutionary situations – and one that Kant wasn't able to resolve as easily as in the previous case. Kant points out that even those revolutions that succeeded in establishing “much admired constitutions”22 can be judged only in retrospect and only when they in fact did succeed. At first glance, one might think that the difficulty lies solely in the fact that one can never know in advance whether a revolution will succeed or fail – and that the individual confronted with the decision whether or not to participate in the revolution will possess the requisite information for that decision only ex post. However, Kant does not argue that such flawed retroactive legitimization is unavailable to the actors at the crucial revolutionary moment. In the Contest of the Faculties, Kant writes: The revolution which we have seen taking place in our own times in a nation of gifted people may succeed, or it may fail. It may be so filled with misery and atrocities that no right-thinking man would ever decide to make the same experiment again at such a price, even if he could hope to carry it out successfully at the second attempt23. Kant makes it exceedingly clear here that the issue here is not the uncertainty of the outcome (and hence the uncertainty of the flawed retroactive legitimizing judgment) – for even if success was certain, one still would not be willing to bring upon oneself the 'misery and atrocities' necessary in order to achieve said success. The crucial observation follows suit: But I maintain that this revolution has aroused in the hearts and desires of all spectators who are not themselves caught up in it a sympathy which borders almost on enthusiasm, although the very

21 ibid., p. 82. 22 ibid. 23 Kant, Immanuel: The Contest of Faculties, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), p. 182.

IV. Kantian undecidability

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utterance of this sympathy was fraught with danger. It cannot therefore have been caused by anything other than a moral disposition within the human race24. This argument leaves us with a baffling contradiction: Kant asserts in Theory and Practice that the principle of right proscribes that “whatever a people cannot impose upon itself cannot be imposed upon it by the legislator either”25. According to Kant, a moral agent ought not endorse a maxim which would impose a burden upon others that the agent could not possibly want to impose upon herself. In other words, a maxim which one can only advocate on the condition that one be exempt can never be morally right. Yet in the case of the French Revolution, Kant seems to abandon the universalizability requirement: he asserts that no rightthinking (French-)man could ever wish for it to happen (to him), whereas the sympathetic spectators (who by definition know that they will be exempt from it) would happily choose to impose the pains of this revolution upon others (if given the opportunity) – yet Kant doesn't conclude from the fact that the maxim underlying the revolutionary action can only be welcomed by those unaffected by it that it must be invalid. Quite on the contrary, he takes the enthusiasm which only the uninvolved spectator who himself is exempt from the misery and atrocities as an indication - not of sadism, but rather of a 'moral disposition within the human race'! Kant's view of the French revolution thus constitutes an intriguing instance of a morality that endorses as a good thing for others what it rejects as a good thing for oneself. The undecidability inherent in such cases of spectator-advocated revolutions arises because there are no compelling reasons for the moral philosopher as (meta-)spectator to decide whose side to take; i.e. whether one should condemn revolution with all right-minded men caught in the middle of it, or whether one ought to welcome it with the unaffected bystanders who are in a position to applaud it precisely because they don't have to bear the miseries and atrocities it brings in its wake. It is only because of the fundamental divide between the uninvolved spectator on the one hand and the suffering agent on the other, that a positive judgment of the revolution becomes possible for the former. It

24 ibid. 25 cf. Kant, Immanuel: Theory and Practice, p. 85.

IV. Kantian undecidability

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is this radical non-identity between the revolutionary and the bystander (or the revolutionary during, and the citizen after the revolution) that makes it so hard on Kant's account to form a judgment on whether violent revolution is a justifiable means in the pursuit of the commendable end of establishing the lawful condition. The non-identity of the two judging individuals is at the root of their incompatible and even diametrically opposed moral evaluations of revolution – and yet, both can offer some justification for the correctness of their judgment and can provide reasons for why their judgment should count. It doesn't really matter whether the non-identity occurs between different individuals (as in the case of a revolutionary and his contemporary spectators) or intertemporally between one and the same individual (as in the case of a rightthinking individual critical of the revolution when caught in its midst, yet approving of it as a retroactively legitimizing citizen living in a civil society that reaps the benefits of the successful past revolution) – in either case, one is compelled to take sides, yet Kant is at a loss in guiding our choice in the matter.

V. The Captain Ahab problem
In his book Choice and Consequence, Thomas Schelling recounts a scene from the movie Moby Dick: Captain Ahab is in a bunk below the deck just after his leg has been severed by the whale. Being held down by his shipmates, he watches in horror the ship's blacksmith approach with a red-hot iron, intending to cauterize his wound. Ahab desperately begs his shipmates not to be burnt – and yet they ignore his plea. Schelling observes that as the movie goes on, Captain Ahab, once the crucial moment has passed, doesn't seem to hold a grudge against those who disregarded his explicit petition not to be subjected to the pains of the treatment; a petition that he made while being fully aware of the dire consequences of an uncauterized wound. Schelling notes that there are many circumstances in human life where an individuals' preferences are radically different from her preferences at a different point in time – and that this gives rise to an important moral problem: whom should we attribute the capacity to make autonomous and binding decisions to; whose expressed command ought we to disregard; whom ought we as bystanders feel obliged to obey – the Ahab about to be burnt who begs to be let go, or the Ahab who approves of the tormenting treatment only once it

V. The Captain Ahab problem

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has passed? Is there a way for us to determine which expression of will should count as the authentic one that others ought to respect? The problem is this: if I authorize being put in extreme pain (say, a long and necessarily painful operation to cure an onerous condition), do you let me change my mind when I discover how painful the ordeal really is that I committed myself to before I could ever know what it would feel like and when I scream that I revise my decision now that I do know? Schelling argues that there isn't any justifiable way of settling this question: How do we know whether an hour of extreme pain is more than life is worth? [...] We do not. At least I do not. The question entails the kind of undecidability that many economists attribute to the interpersonal comparisons of utilities. [...] That means that if you must cauterize Ahab's leg to keep me from dying, there is no way to determine whether the little two-person society consisting of Ahab and me enjoys a net gain in utility when you spare him the pain and let me die. The conclusion I come to is that I can no more decide this for myself, if it is I being burned and I dying, than I can decide for two other people26. However, the tragic dimension of such situations lies in the fact that we can't avoid the problem by remaining undecided in the face of undecidability: no matter what we choose to do, we will always end up taking sides. Schelling points out that as a practical matter, we routinely resolve such cases of undecidability simply because we have to27. On Schelling's account, legally binding contracts provide a tool for managing cases where the inter-temporal non-identity of an agent arises. A contract provides a tool for individuals who anticipate their own preferences to be radically different in the future to commit their future selves to their current set of preferences28. When the undecidability issue arises, i.e. when we seem to be entirely different persons across specific moments, contracting provides the means for ensuring consistency by authoritatively settling the question which expression of the will ought to be obeyed and by binding ourselves to what we now understand to be our real interest then.

26 Schelling, Thomas: Choice and Consequence. Perspectives of an errant economist (Cambridge, Mass: Harvard University Press, 1984), p. 92. 27 ibid., p. 93. 28 Schelling however also notes that we can enlist the coercive capacity of the law in order to frustrate our own future preferences only in our relationships with others, but not in relation to ourselves: my employer can by means of contract law coerce me not to smoke in the workplace; yet I cannot use the coercive force of civil law to prevent myself from smoking.

VI. Kant's and Schelling's solution to the Captain Ahab problem

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VI. Kant's and Schelling's solution to the Captain Ahab problem
It is important to note, however, that whenever we use a contract in order to solve the undecidability problem, we simply arbitrarily privilege the preference set the agent happens to have at the moment of entering the contract. Contracts solve the undecidability issue only at the cost of arbitrariness – Schelling's 'solution' involves siding with the contracting agent while she is contemplating a future situation without really knowing what it will be like living through it, while Kant sides with the judgment of the person experiencing the agony of revolutionary violence (thus rejecting a right to revolution), rather than with the judgment of the person approvingly looking back upon the violent origins of his lawful condition. In fact, the audience watching Moby Dick is caught in the same moral dilemma as the Kantian moral agent trying to figure out his allegiance in the case of the French revolution: the difficulty consists in the need of dismissing the morally compelling case of one side as simply irrelevant. We either have to side with the Captain Ahab who's about to be burned in his rejection of the treatment, or with the cauterized Ahab who retroactively approves of it. Schelling points out that such retroactive approval does not provide a sufficient justification for our siding with the post-cauterization Ahab. The latter is not having the preferencetransforming experience of having a red-hot iron pressed against one's body; he is fundamentally nonidentical with himself when under pain, so he cannot speak for that other Ahab just as he cannot speak for other persons29. In Kantian terms, the retroactively approving Ahab is an uninvolved spectator whose endorsement of the treatment does nothing to discredit the clamors of the suffering victim that no rightthinking man could ever choose to bring this upon himself. With respect to revolutions, we have seen that the undecidability problem arises not out of the inherent uncertainty regarding their outcome (even though such uncertainty certainly complicates judgment), but out of the fundamental non-identity of the perspective of the moral person experiencing the situation with that of the moral person witnessing it – even if they should happen to be one and the same individual. For this reason, in Schelling's example, Captain Ahab is incapable of resolving his case himself – he finds
29 Schelling, Thomas: Choice and Consequence, p. 92, my emphasis.

VI. Kant's and Schelling's solution to the Captain Ahab problem

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himself in the same awkward position with respect to himself as any moral agent who has to decide whose Ahab's expression of will to obey. This can only mean that whenever we have to face such a situation, we will inevitably emerge guilty of dismissing the legitimate case of one side, no matter how we choose to act. However, as Schelling points out too, we have a tendency to collapse this tragic dimension. For practical purposes, by performing an act of will we simply declare one side to reflect the 'true' and 'enlightened' judgment of the person in question, (e.g. that cauterizing the wound is the right decision), but we can only do so because we don't know what it is really like to experience the pain that we take to be justified by its benefits. We behave as if we knew both sides of the trade-off, as if we were in a position to pass a utilitarian judgment on which course of action maximizes net utility. We can only do this by deluding ourselves into believing that we in fact are performing a comparison (is the pain worth the benefits?) when in fact we can never know one side of the equation, absent the actual experience (our prospective imagination or retrospective memory of the experience is incapable of bringing about the transformation of preferences that the actual experience generates). Whenever we follow our inclination to escape undecidability and take sides, we are for principled reasons incapable of benevolent paternalism. The collapsing of the tragic dimension comes at the price of asserting that one knows what one cannot know, that one can bridge the fundamental non-identity by performing a comparison operation across different individuals when all one does in fact is to simply disregard the perspective of the individual experiencing the situation in question and to declare the perspective of the non-identical witness as the only relevant one. Ending the undecidability in this way thus necessarily involves doing violence to the individual trapped in the situation. Thanks to Schelling's conceptual framework, it should have become apparent why Kant's view of revolutions is necessarily conflicted: He is perceptive of the fact that welcoming the French Revolution comes at the price of doing violence to its victims, for we can never justify their suffering and dying by referring to the resulting benefits for - and the applause of non-identical spatial or temporal bystanders.

VI. Kant's and Schelling's solution to the Captain Ahab problem

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In other words, Kant refuses to collapse the tragic moral dimension of the undecidability problem inherent in revolutions along the line proposed by Schelling. He does not side with the approving spectators, for doing so would in itself constitute an act of unjustifiable violence towards the suffering agents caught in the midst of the revolution, much like the revolutionary acts of violence that one would thereby become capable of applauding. The fact that a successful revolution and the creation of a lawful condition will radically transform the outlook of the people living under it, the fact that what previously looked like an arbitrary violent act now might appear to them in retrospect as a legitimate and possibly even morally required act doesn't speak to the people experiencing the pains of revolution. The confidence that in retrospect, the victims will be thankful for their ordeal might be useful for political stability in postrevolutionary society (just as Ahab's subsequent lack of complaints against the ship's blacksmith might be useful for the peaceful continuation of their social relationship) – however, the 'you'll thank me later' attitude only masks the fact that we are dealing with two non-identical moral agents and that retroactive consent of the one cannot provide a moral justification for doing violence to the other. If my Schelling-inspired reading of Kant is correct, it should have become apparent why Kant had to refuse to simply side with the approving voices of the post-revolution citizens. However, isn't it the case that in refusing to endorse a right to revolution, Kant is doing unjustifiable violence to its potential beneficiaries who are now perpetually left at the mercy of tyrants?

VII. Kant's teleology as violence-evading strategy
Kant is actually far from leaving a people defenseless in the hands of an abusive ruler. First, he argues that “freedom of the pen is the only safeguard of the rights of the people. [...] [I]t would be permissible to pass general and public judgements upon [tyrannical acts], but never to offer any verbal or active resistance”30. Moreover, in the Metaphysics of Morals, he expresses his belief that abusive forms of government “should resolve themselves into the original (rational) form which alone makes freedom the

30 Kant, Immanuel: Theory and Practice, p. 85.

VII. Kant's teleology as violence-evading strategy

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principle and indeed the condition of all coercion. [...] This, then, is the only lasting political constitution” 31. How could republicanism be the only lasting constitution if people indeed obeyed the principles of right and didn't rebel? Kant holds that “the mechanical process of nature visibly exhibits the purposive plan of producing concord among men, even against their will and indeed by means of their very discord”32. Kant elaborates on this idea in the Universal History. Like in Perpetual Peace, he draws a parallel between individual relations and state relations in order to address the issue of cosmopolitanism. States, like men, are driven by a natural antagonism33 to establish a moral order that structures their relations in a rational manner. In the case of states, this “inevitable antagonism” refers to wars, tense and unremitting military preparations, and the resultant distress which every state must eventually feel within itself, even in the midst of peace – these are the means by which nature drives nations [...] to take the step which reason could have suggested to them [...] - that of abandoning a lawless state of savagery and entering a federation of peoples34. Nowhere does Kant address Held's question more clearly than in this passage: the cosmopolitan condition will not come about by a peaceful and consensual process, but by means of a natural process that unfolds against the will of individuals and that will inevitably involve violent conflict. So while the end – perpetual peace – is clearly at odds with the means that will bring it about (wars), this must seem acceptable to Kant within his teleological framework, since the violence committed in the process is not the result of a moral agent's decision that aiming at doing violence to others should be regarded as acceptable in the pursuit of the moral goal of perpetual peace. Kant's teleological view of human history, I would argue, is not only a move motivated by the desire to make the prospects of his cosmopolitanism appear in a brighter light, but also by the fact that Kant clearly saw the problem of foundational violence inherent in the transition toward the lawful condition. I have tried to argue that Kant's resistance to a right to revolution should be understood not primarily as a product of the historical connection between revolution and violence, but as a product of his theoretical insight that there is
31 Kant, Immanuel: The Metaphysics of Morals, p. 163; cf. also ibid.: Theory and Practice, p. 91. 32 Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 108. 33 Kant, Immanuel: Idea for a Universal History with a Cosmopolitan Purpose, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), p. 44, 47. 34 ibid., p. 47.

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a systematic connection between constitutionalization and the need for some form of foundational violence that cannot be justified to those suffering it, irrespective of the benefits that can subsequently be enjoyed by others. It is because he is aware of the dilemma of foundational violence that he does not call for a revolution at the global level in order to establish the cosmopolitan condition. Instead, he develops an interesting teleological strategy in order to avoid having to hold moral actors responsible for committing the necessary acts of foundational violence. Men themselves, he argues, are incapable of generating the violent grounding of the cosmopolitan lawful condition; it exceeds human capacity, even if reason dictates it. In particular, requiring men to perform the foundational violence of a cosmopolitan order would exceed human capacity precisely because men are moral agents, and any such requirement would place irreconcilable moral duties upon them, since such foundational violence, as has been argued above, cannot be justified to its victims. Consequently, Kant needs another type agent who is not restricted in his actions by the principles of right – and he finds such an agent in “the great artist Nature herself”35. Kant refuses to collapse the undecidability between the perspectives of the revolutionary actor and the uninvolved spectator by arbitrarily taking one side. His teleological move as well as his decision to opt for a federation of republics instead of for a world republic is thus ultimately motivated by his desire to avoid the necessity of a coup de force committed by moral agents in order to establish the cosmopolitan condition. Instead, the violence necessary for the constitutionalization process takes the form of a war-ridden antagonism which is excusable by virtue of the fact that the necessary violence is performed by a non-moral agent, Nature. Kant's teleological move is very convenient in yet another aspect as well: by acknowledging a systematic connection between a cosmopolitan lawful condition and the foundational violence, it would seem that unjustifiable violence has found its way to enter the moral universe. However, the teleological move permits Kant to accept the inevitability of foundational violence of a cosmopolitan order, while confining

35 Kant, Immanuel: Perpetual Peace. A Philosophical Sketch, p. 108.

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such violence to the purely descriptive realm of the harsh realities of the international system as he found it before him. He can accept the systematic connection between unjustifiable violence and perpetual peace, and yet exclude the former from the prescriptive realm, because the inevitability of teleology renders its it unnecessary that there be a moral duty to exert morally inexcusable violence in order to bring about the cosmopolitan legal condition. This is what makes it possible for Kant to take the only acceptable stance in the face of the undecidability problem, namely to remain undecided. One has to reject a right to revolution in order not to do violence to the victims of the revolution, yet one can only avoid doing violence to its citizen-beneficiaries by hoping that the necessary foundational violence will be committed by a non-moral agent.

VIII. Conclusion
This result might strike all those who don't believe in Kantian teleology as deeply unsatisfactory. In this concluding section, I won't be able to present a neat solution – instead, I will offer the sketch of an explanation why the issue of undecidability has proven so intractable. My claim is that political theorizing typically bases its conclusions on two sources of legitimacy, even if it only one of them is usually openly acknowledged. The very idea of the legitimacy of democratic selfgovernance is based upon the notion of consent. The underlying intuition holds that there can be nothing morally problematic with what an agent consents to having done to herself. In fact, the exercise of such choosing what is to happen in one's own life is regarded as the essence of personhood. Theorists may differ on their reasons for valuing the opportunity for such acts of choosing on the part of the affected agent as well as on their reasons for respecting the resulting choices – but there appears to be broad theoretical consensus that the opportunity for such self-governance is valuable and that the choices that end up being made by moral agents with respect to their own lives are difficult to disregard legitimately. For that reason, we assign great moral weight to the will and judgment of the involved agent. In fact, the claim that there could be a different voice that speaks with greater authority than the consent (or its withholding) of

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the agent whose mode of life is at stake seems inescapably presumptuous. The entire project of contractualism is based on the intuitive appeal of consent as source of legitimacy. However, in order to circumnavigate the serious difficulties inherent in the construction of a legitimizing framework based on actual consent by real agents, contractualism typically resorts to hypothetical consent of idealized and abstracted agents. Ironically, contractualism sets out to establish legitimacy based on the actual consent of the experiencing agent, but ends up endorsing as legitimate those arrangements that could secure the assent of the uninvolved spectator. My contention here is that such contractualist frameworks, despite the misleading labelling as consensualist, actually rely not on the appeal of consent, but rather on the appeal of impartiality as source of legitimacy. What Rawls, Gauthier or Scanlon offer is nothing else but impartiality disguised as consent. Their theories no longer draw on the image of the involved agent who ought to be able to control his own fate and who can legitimately choose for himself based on reasons that may have force only for him. Instead, they draw on the judgment of the uninvolved spectator who chooses for no-one in particular and all, based on reasons that have force for anyone. The central dilemma of legitimacy can thus be expressed in the familiar form of a problem of undecidability: is legitimacy rooted in actual consent of the affected agent, or is it to be found in the impartial approval of the unaffected observer? Note that the latter can only approve, but not consent to anything because the impartial observer is strictly speaking no-one, her non-identity with any real agent implies that she cannot consent in lieu of the agent36. This conflict remains unsolved within Kant's own writing: the political condition of mankind is marked by the need to respect the autonomy of actual involved others, so that their consent would emerge as the condition of legitimacy, yet he also argues that the moral weight of universalizable maxims derives from

36 The fact that the observer can only approve, but not consent is also at the root of the Captain Ahab problem: the postcauterization Captain Ahab can in retrospect contemplate and approve of the treatment, yet he cannot consent to (and thereby legitimize) what has been done to the Captain Ahab who explicitly rejects the painful treatment.

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their acceptability from the standpoint of impartiality, thus detaching their validity from the actual consent of real (and hence: involved and partial) agents. Kant's inability to overcome the undecidability inherent in any constitutionalization process and his refusal to side with either the engaged revolutionaries or their uninvolved observers simply reflects the fact that political theorists have been pretending for too long that the legitimizing appeal of impartiality has been thoroughly discredited together with Platonic philosopher-kings. Acknowledging the crucial role of impartiality as a second source of legitimacy besides consent would be the first step towards a better understanding of their paradoxical interrelation.

Held, David: Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford, CA: Stanford University Press, 1995). Idea for a Universal History with a Cosmopolitan Purpose, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991). On the Common Saying: 'This May be True in Theory, but it does not Apply in Parctice', in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991). The Contest of Faculties, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991). The Metaphysics of Morals, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991). Perpetual Peace. A Philosophical Sketch, in Kant, Immanuel: Political Writings, edited by H. Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991). Maastricht und der pouvoir constituant. Zur Bedeutung der verfassungsgebenden Gewalt im Prozeß der europäischen Integration, Der Staat, vol. 11 (1993), issue 2.

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Schelling, Thomas: Choice and Consequence. Perspectives of an errant economist (Cambridge, Mass: Harvard University Press, 1984).

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