Immanuel Kant

Arthur Ripstein, Arthur Ripstein

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351928601
• Edition: 1
• Topic: Philosophie
• Subtopic: Histoire et théorie de la philosophie

Kant casts a long shadow over contemporary debates in political philosophy. The Kantian roots of ideas of dignity, autonomy, equality and freedom under law are widely acknowledged. Kant's own developments of those ideas in his explicitly political writings are taken up less frequently. The aim of this volume is to help bring those contributions out of the shadows. The articles and essays explore various dimensions of Kant's complex and powerful picture of the relation between morality and politics that Kant develops.

Part I
General: Kantian Morality and Kantian Politics

[1]

THE LAW OF HUMANITY AND THE LIMITS OF STATE POWER

Julius Ebbinghaus

I

Since 1933 we Germans have had much reason to reflect upon the law of humanity and the limits of state power. But this may provoke an answer with which we in Germany have become familiar during the past ten years, that our real obligation was not so much to reflect upon humanity and state power as to keep the power of our leader within its due limits, and that this obligation we failed to carry out. To this charge it might be added that it is a traditional mistake of German thinkers to forget that political bodies do not live by theory, but by the actions of their members. Even a professor, it may be said, may not content himself with the subtleties of theory, and comply, for the rest, with the world as it goes. It is not by theory that state power can really be limited. If it were, we could only regret that it proved so ineffective when effectiveness was so much needed.

To this let me answer not as a German, but as a professor who, like professors everywhere, has devoted his life to theory. You cannot tame tyrants by theories; but neither can you do so, surely, without them. If a good theory cannot free anyone from the chains imposed upon him by an unlimited power, may it not be that a bad theory has helped this power to rid itself of limitations ? In the seventeenth and eighteenth centuries, the despotic authority of absolute monarchs could not have been over-thrown without the help of certain theories; and it was a theory of personal responsibility which guided the victors when in 1945 they set about the denazification of Germany. If there is some dissatisfaction, not only in Germany but also, it would seem, throughout the world, with the working out of this process, may not this suggest a certain doubt whether the theory underlying the denazification was a good one, or at least whether it was sufficiently thorough ?

It has always impressed me that, on the assumptions of so-called legal positivism, there can be no legal restriction upon the supreme power, even in theory. Its freedom from limits is a logical consequence of the idea that there is no law other than civil law. By civil law is meant a law laid down by a sovereign person, whether individual or corporate, possessing the physical power to enforce it upon his subjects. The law, as conceived by legal positivism, is not a law for all humanity, since by definition it is prohibited from applying to all human beings. Its universality is restricted by its own nature, since there must be persons, or at the least one person, exempt from it, and for whom it is not valid.

Now it may be asked whether the principle of juridical legality, so conceived, is a true principle. To this question I should like to reply by asking another, What is meant by a ‘true principle ’ ? No one can deny that it is possible to think it : in the assertion of legal positivism there is no contradiction. Nor does it disagree with experience. On the contrary, its characteristic is that it acknowledges only an empirical foundation for human rights. If a man possesses a right, then he has, no doubt, the power to restrict the external liberty of others by his own. You may travel the world, and no-where will you find such a power except where the forces of the individual are supplemented by the overwhelming force of a supreme ruler. But experience also teaches us that in moral matters men are not by nature empiricists. Instead, therefore, of asking whether the principle of legal positivism is right or wrong, I prefer to ask whether we could not devise a truly universal order of external liberty among men. Such an order is evidently conceivable. It would be a system of restricted external liberty, in which—in contradiction to positivism—the reciprocity of restriction is universal. By the law of such a system, no one would have the power to restrict the liberty of another without himself equally being restricted by the liberty of the other. Complete independence of restrictions on the liberty of mankind from the unrestricted, and therefore arbitrary, power of any—that is the true meaning of such a law. It is a law, therefore, which by its very nature requires a lawful and not an arbitrary determination of what men are free to do.

Now I venture to claim that when anyone talks of ‘ his right ’ in general, this is the law which he has in mind. When he speaks thus, he does not care whether or not there is a physical power able to enforce his claim upon others by its own unrestricted freedom of action. Whatever he claims simply as his right, he claims with reference to an ideal system in which no freedom can be denied to him, if this freedom is not contrary to a universal determination of freedom by law.

If we now consider the law of such a system more closely, we easily perceive that it is, by its very nature, the law of a society common to all men. Positivism is greatly mistaken in thinking that the purely rational idea of a law which renders possible the personal liberty of every man must refer of necessity to a law which protects the interests of the individual against the community. This law does not protect interests at all, neither of individuals nor of communities. It does not even protect freedom; it creates freedom. It does so by putting the unregulated and precarious natural liberty of individuals under the condition of a possible legal union with the liberty of others. By doing this, it reveals itself as that law by which alone a universal and stable society common to all men can be possible. The contravention of this law makes it impossible to unite the wills of men, in respect of their external freedom, into one general will of humanity. Any liberty granted or assumed contrary to such a law would be a liberty to subject the freedom of others to my own pleasure. Consequently any contravention of it is equivalent to the possibility of discord among men. For it is self-evident that the will of one man cannot agree with the will of another who proposes to retain the liberty of interfering with him arbitrarily in doing what he is pleased to do. If this is clear, then something else seems equally clear : the law of a possible harmony between men through laws determining their external liberty is at the same time the law of a community embracing all men. In this sense it may be called the law of humanity.

A man, then, who considers himself as a subject of possible rights does not speak as an individual, nor as a member of a particular group of human beings. He speaks of himself as a member of a purely ideal community of all mankind.

It may be said that all these considerations are very abstract. Certainly they are, and—as I think—they must be. It is not the philosopher’s fault if men conceive such an abstract idea as the agreement of the mutual restrictions of their liberty with possible determination by laws. It is the fault of man’s reason. Reason requires the determination of the particular by the general. A free action among men must be determinable by general laws. This is the very abstract, and at the same time—to my mind—the very simple idea by which reason has created in every man the indestructible conviction that he is a person with rights against other persons.

II

We have now laid a foundation for the consideration of state power. We can begin by asking what relation there could be between the law of humanity as we have conceived it, and such power. Does this law contain in itself any necessity for power at all ? Let us consider what duties can be immediately deduced from our law. First of all, it would be a palpable breach of it if a man freely subjected his own liberty to the arbitrary command of another. If he did so there would remain no possibility of a lawful harmony between his own liberty and that of the person to whom he subjected himself. Clearly, then, his action would be a breach of the law.

Secondly, the law imposes upon us a duty to restrict our own liberty so that it accords with the lawful liberty of others. A man who violates the rights of others is, I repeat, one who will not confine his own liberty within the limits required for a possible legal harmony with the liberty of others. If he disregards these limits on principle, he takes his own material power as the standard for his treatment of his fellows, as if they were mere things. Thus he violates humanity in them, as in the former case he violated humanity in himself.

We may sum up these two principles in a two-fold precept : Do not reduce yourself to an object of other men’s arbitrary power, nor other men to objects of your own. But now it is precisely the union of these two principles which creates a real difficulty, and drives us beyond the limits of analytic triviality. For although they seem to fit one another so well, it is impossible to fulfil both principles unconditionally. This becomes obvious when we consider the incontestable fact that the man who acts lawfully towards others has no guarantee that the others will act in the same manner towards himself. By this fact, the law itself forces him into a contradictory situation. If he is unsure of the rule of behaviour of others, it may well be that he reduces himself to an object of their pleasure precisely by conforming to the law in his own. This not only may be so : it assuredly will be so. Whoever refrains, in accordance with the law, from subjecting other people’s freedom to his own arbitrary power, by this very act has made his own freedom dependent upon the pleasure of others. Thus he violates the law. What can this mean ? Clearly this : that a state of affairs in which the lawful behaviour of one man to another does not necessarily involve a reciprocal lawfulness in the other’s behaviour to him, is itself contrary to the law. It is contrary to the law because it makes fulfilment of the law impossible. We have, then, brought to life a third principle; that we are bound by the law itself to create a state of affairs in which every one who respects the lawful liberty of others can have all possible assurance that they will respect his own. If we now imagine this precept given to men who do not live in such a state, and ask ourselves what they can do to produce it, the answer is clear. They must submit themselves to a common authority which has the power to impose laws upon them, and whose sole objective is the universal assurance of rights. Subjection to such a power is required by the law. Consequently, we have to admit that the law creates for every man an original right to claim from other men that they unite with him in subjecting themselves to such a power. In this way it is proved that no lawful dominion is possible among men except that of a will whose law is the universal security of rights; that is to say, the law of public justice. Any subjection of men which is not designed to secure the rights of all is unjust, despotic, and contrary to the law of humanity.

I am concerned to insist, particularly in Great Britain, that this is no proclamation of old-fashioned economic liberalism. Full freedom of economic action may well prove an instrument for reducing the poor to dependence on the arbitrary power of the rich. So far as it has this effect, it contravenes the constitutional law of state power; and so far it has to be limited by positive law. But the ground of such limitation is not to be found in benevolence, and its objective must not be the general happiness. Happiness is something which cannot be achieved through general laws; and therefore it cannot be the purpose of the state’s legislation. The only legitimate object of state legislation is the security of all, by means of general laws, against the arbitrary power of any; and it is on this title—and this title alone—that public legislation has not only the right but also the duty to interfere with economic freedom.

III

We have now expounded the law of humanity, and have derived from it the legitimation of state power. Remembering the celebrated ‘ Déclaration des droits de l’homme et du citoyen ’ of the French Revolution, we may say that we have derived the ‘ droit du citoyen ’ from the ‘ droit de l’homme ’. If we now apply this derivation to the question of the limits of state power, the conclusion is simple. The authority of the state, we must assert, is limited by the law of humanity. This means, in accordance with our premisses , that the right of any constraining power must be restricted to making and enforcing such laws as are necessary to secure the rights of all. But here arises a new difficulty—a difficulty which reveals, so to speak, the full misery of humanity, if we regard humanity not as an ideal community which should exist, but as it does actually exist in our experience. In the ideal order, no doubt, the competence of the sovereign to enforce his will upon his subjects depends upon the accordance of his will with the universal law of justice. But under the conditions of experience no one can possess this competence, unless he first possesses the material power to enforce his will. On the one hand, the legality of the will is the condition of its power : on the other, the power of the will is the condition of its legality.

The condition of its legality, I repeat. This does not mean simply that in the natural order of things dominion is always conditioned by material power. That would be a trivial assertion. It means rather that no one who does not possess an irresistible power over men has the right to enforce his will upon them. This may seem a desperate conclusion. If it is to follow necessarily from our premisses, it must be contained in the law of humanity itself. Can this be shown ? I think it can, and that a very short reflection will be sufficient to supply the proof. There is only one will which is necessarily in accordance with the law of justice, and that is the universal will of humanity, considered as the union of all men under the general laws of their liberty. To unite men as they are under such laws, power is required. We cannot suppose that men unite themselves under such laws, since no one is obliged to surrender his natural liberty without a guarantee that others will do the same. To provide such a guarantee requires power. If, then, we regard conformity to the law of justice as a prior condition of the lawful authority of a will, no actual human will can ever possess any legal authority whatever. Our ideal principle frustrates all possibility of justice among men. Consequently, we are in contradiction with the law which requires justice, and this is the law of humanity.

Here we seem to have uncovered the root of the problem of right and might. We must not make the actual justice of a will the condition of its rightful sovereignty, since by doing so we destroy the possibility of justice among men. In other words, the authority of the sovereign, if it is limited, cannot...