Appendix II

CONCERNING THE HARMONY OF POLITICS WITH MORALS ACCORDING TO THE TRANSCENDENTAL IDEA OF PUBLIC RIGHT

ON THE AGREEMENT BETWEEN POLITICS AND MORALITY ACCORDING TO THE TRANSCENDENTAL IDEA OF PUBLIC RIGHT

If I look at public right from the point of view of most professors of law, and abstract from its matter or its empirical elements, varying according to the circumstances given in our experience of individuals in a state or of states among themselves, then there remains the form of publicity. The possibility of this publicity, every legal title implies. For without it there could be no justice, which can only be thought as before the eyes of men; and, without justice, there would be no right, for, from justice only, right can come.

Suppose I consider public right from the perspective of most law professors and set aside its matter, or empirical elements. These elements vary with the circumstances we encounter among individuals within a state or among states themselves. What then remains is the form of publicity. Every legal claim assumes that such publicity is possible. For without publicity, there could be no justice, since justice can only be understood as open to public view. And without justice, there would be no right, because right can come only from justice.

This characteristic of publicity must belong to every legal title. Hence, as, in any particular case that occurs, there is no difficulty in deciding whether this essential attribute is present or not, (whether, that is, it is reconcilable with the principles of the agent or not), it furnishes an easily applied criterion which is to be found a priori in the reason, so that in the particular case we can at once recognise the falsity or illegality of a proposed claim (praetensio juris), as it were by an experiment of pure reason.

Every legal claim must have this quality of being open to public scrutiny. In any particular case, we can easily decide whether this essential quality is present. That is, we can decide whether openness to public scrutiny is compatible with the principles of the person acting. This quality therefore provides an easy test, available a priori through reason. Using this test, we can immediately recognize whether a proposed claim (praetensio juris) is false or unlawful. We do so as if conducting an experiment through pure reason.

Having thus, as it were, abstracted from all the empirical elements contained in the concept of a political and international law, such as, for instance, the evil tendency in human nature which makes compulsion necessary, we may give the following proposition as the transcendental formula of public right:—“All actions relating to the rights of other men are wrong, if the maxims from which they follow are inconsistent with publicity.”

We have thus, in a sense, set aside all elements of political and international law drawn from experience. These include, for example, the evil tendency in human nature that makes coercion necessary. We may therefore state the following as the transcendental formula of public right: “All actions affecting the rights of others are wrong if the principles behind those actions cannot be made public.”

This principle must be regarded not merely as ethical, as belonging to the doctrine of virtue, but also as juridical, referring to the rights of men. For there is something wrong in a maxim of conduct which I cannot divulge without at once defeating my purpose, a maxim which must therefore be kept secret, if it is to succeed, and which I could not publicly acknowledge without infallibly stirring up the opposition of everyone. This necessary and universal resistance with which everyone meets me, a resistance therefore evident a priori, can be due to no other cause than the injustice with which such a maxim threatens everyone. Further, this testing principle is merely negative; that is, it serves only as a means by which we may know when an action is unjust to others. Like axioms, it has a certainty incapable of demonstration; it is besides easy of application as appears from the following examples of public right.

This principle must be seen not only as an ethical principle, belonging to the study of virtue. It must also be seen as a legal principle concerning human rights. For something is wrong with a rule of conduct that I cannot reveal without immediately defeating my purpose. Such a rule must therefore remain secret if it is to succeed. I could not publicly acknowledge the rule without inevitably provoking everyone’s opposition. Everyone would necessarily resist me, and this universal resistance is therefore clear a priori, or independently of experience. Such resistance can have no cause other than the injustice with which such a rule threatens everyone. Further, this test is only negative. In other words, the test only lets us recognize when an action is unjust to others. Like axioms, this principle has a certainty that cannot be proved. It is also easy to apply, as the following examples concerning public law show.

1.—Constitutional Law. Let us take in the first place the public law of the state (jus civitatis), particularly in its application to matters within the state. Here a question arises which many think difficult to answer, but which the transcendental principle of publicity solves quite readily:—“Is revolution a legitimate means for a people to adopt, for the purpose of throwing off the oppressive yoke of a so-called tyrant (non titulo, sed exercitio talis)?” The rights of a nation are violated in a government of this kind, and no wrong is done to the tyrant in dethroning him. Of this there is no doubt. None the less, it is in the highest degree wrong of the subjects to prosecute their rights in this way; and they would be just as little justified in complaining, if they happened to be defeated in their attempt and had to endure the severest punishment in consequence.

1. Constitutional Law. Let us first consider the public law of the state (jus civitatis), especially as it applies within the state. A question arises here that many think is difficult to answer. But the transcendental principle of publicity answers the question quite easily: “May a people legitimately use revolution to free themselves from the oppressive rule of a so-called tyrant? Such a ruler is a tyrant in practice, not by title.” A government of this kind violates the rights of a nation. No wrong is done to the tyrant by removing him from power. There is no doubt about either point. Nevertheless, it is utterly wrong for subjects to assert their rights in this way. And if their attempt failed and they suffered the harshest punishment as a result, their complaints would be equally unjustified.

A great many reasons for and against both sides of this question may be given, if we seek to settle it by a dogmatic deduction of the principles of right. But the transcendental principle of the publicity of public right can spare itself this diffuse argumentation. For, according to that principle, the people would ask themselves, before the civil contract was made, whether they could venture to publish maxims, proposing insurrection when a favourable opportunity should present itself. It is quite clear that if, when a constitution is established, it were made a condition that force may be exercised against the sovereign under certain circumstances, the people would be obliged to claim a lawful authority higher than his. But in that case, the so-called sovereign would be no longer sovereign: or, if both powers, that of the sovereign and that of the people, were made a condition of the constitution of the state, then its establishment (which was the aim of the people) would be impossible. The wrongfulness of revolution is quite obvious from the fact that openly to acknowledge maxims which justify this step would make attainment of the end at which they aim impossible. We are obliged to keep them secret. But this secrecy would not be necessary on the part of the head of the state. He may say quite plainly that the ringleaders of every rebellion will be punished by death, even although they may hold that it was he who first transgressed the fundamental law. For, if a ruler is conscious of possessing irresistible sovereign power (and this must be assumed in every civil constitution, because a sovereign who has not power to protect any individual member of the nation against his neighbour has also not the right to exercise authority over him), then he need have no fear that making known the maxims which guide him will cause the defeat of his plans. And it is quite consistent with this view to hold that, if the people are successful in their insurrection, the sovereign must return to the rank of a subject, and refrain from inciting rebellion with a view to regaining his lost sovereignty. At the same time he need have no fear of being called to account for his former administration.¹⁵³

Many arguments can be made on both sides if we try to settle this question by deducing principles of right dogmatically. But the transcendental principle of publicity in public right lets us avoid this lengthy argument. Under this principle, the people would ask themselves a question before entering the civil contract. Could they openly announce a policy of rebellion whenever a favorable opportunity arose? Clearly, suppose a constitution allowed force against the sovereign under certain circumstances. The people would then have to claim a lawful authority higher than the sovereign’s. But the so-called sovereign would then no longer be sovereign. Or suppose the constitution made both the sovereign’s power and the people’s power conditions of the state’s existence. Establishing the state, which was the people’s aim, would then be impossible. The wrongfulness of revolution is clear from this fact: openly announcing principles that justify revolution would make their intended goal impossible. We must therefore keep those principles secret. But the head of state would not need such secrecy. He may state openly that the leaders of every rebellion will be punished by death. This holds even if the rebels believe he was the first to violate the fundamental law. For suppose a ruler knows that he possesses sovereign power that cannot be resisted. Such power must be assumed in every civil constitution. A sovereign unable to protect any individual member of the nation against his neighbor has no right to rule that individual. Such a ruler need not fear that announcing his guiding principles will defeat his plans. This view is also consistent with the following position: if the people’s rebellion succeeds, the sovereign must become a subject again. He must not incite rebellion to regain his lost sovereignty. At the same time, he need not fear being held accountable for his former rule.¹⁵³

2.—International Law. There can be no question of an international law, except on the assumption of some kind of a law-governed state of things, the external condition under which any right can belong to man. For the very idea of international law, as public right, implies the publication of a universal will determining the rights and property of each individual nation; and this status juridicus must spring out of a contract of some sort which may not, like the contract to which the state owes its origin, be founded upon compulsory laws, but may be, at the most, the agreement of a permanent free association such as the federation of the different states, to which we have alluded above. For, without the control of law to some extent, to serve as an active bond of union among different merely natural or moral individuals,—that is to say, in a state of nature,—there can only be private law. And here we find a disagreement between morals, regarded as the science of right, and politics. The criterion, obtained by observing the effect of publicity on maxims, is just as easily applied, but only when we understand that this agreement binds the contracting states solely with the object that peace may be preserved among them, and between them and other states; in no sense with a view to the acquisition of new territory or power. The following instances of antinomy occur between politics and morals, which are given here with the solution in each case.

2. International Law. International law is possible only if we assume some kind of law-governed order. Such an order is the external condition under which any person can have rights. For the very idea of international law as public right implies a publicly declared universal will. This will determines the rights and property of each nation. And this status juridicus, or legal condition, must arise from some kind of contract. Unlike the contract that establishes a state, this contract may not rest on compulsory laws. At most, the contract may be an agreement to form a permanent, free association. One example is the federation of different states mentioned above. For some legal control must provide an effective bond between separate individuals, whether natural persons or legal persons. Without that bond, they remain in a state of nature, where there can only be private law. Here we find a conflict between morality, understood as the science of right, and politics. The test of observing what happens when principles of action are made public is just as easy to apply here. But we must understand that the agreement binds the participating states solely to preserve peace. This means peace among themselves and between themselves and other states, never the acquisition of new territory or power. The following examples present contradictions between politics and morality, together with a solution in each case.

a. “When either of these states has promised something to another, (as, for instance, assistance, or a relinquishment of certain territory, or subsidies and such like), the question may arise whether, in a case where the safety of the state thus bound depends on its evading the fulfilment of this promise, it can do so by maintaining a right to be regarded as a double person:—firstly, as sovereign and accountable to no one in the state of which that sovereign power is head; and, secondly, merely as the highest official in the service of that state, who is obliged to answer to the state for every action. And the result of this is that the state is acquitted in its second capacity of any obligation to which it has committed itself in the first.” But, if a nation or its sovereign proclaimed these maxims, the natural consequence would be that every other would flee from it, or unite with other states to oppose such pretensions. And this is a proof that politics, with all its cunning, defeats its own ends, if the test of making principles of action public, which we have indicated, be applied. Hence the maxim we have quoted must be wrong.

a. “When either of these states promises something to another, a question may arise. The promise might involve assistance, giving up certain territory, subsidies, or the like. Suppose the safety of the state that made the promise depends on avoiding its fulfillment. Can that state avoid fulfillment by claiming the right to be treated as two distinct persons? In the first role, the state acts as sovereign, accountable to no one within the state it rules. In the second, the state acts merely as its own highest official, answerable to the state for every action. As a result, the state in its second role is released from any obligation undertaken in its first role.” But if a nation or its sovereign openly announced these principles, every other nation would naturally avoid it. Or those nations would join with other states to oppose such claims. This proves that politics, with all its cunning, defeats its own purposes when subjected to the test we have described. That test asks what happens when principles of action are made public. Therefore, the principle we have quoted must be wrong.

b. “If a state which has increased its power to a formidable extent (potentia tremenda) excites anxiety in its neighbours, is it right to assume that, since it has the means, it will also have the will to oppress others; and does that give less powerful states a right to unite and attack the greater nation without any definite cause of offence?” A state which would here answer openly in the affirmative would only bring the evil about more surely and speedily. For the greater power would forestall those smaller nations, and their union would be but a weak reed of defence against a state which knew how to apply the maxim, divide et impera. This maxim of political expediency then, when openly acknowledged, necessarily defeats the end at which it aims, and is therefore wrong.

b. “If a state grows powerful enough to frighten its neighbours (potentia tremenda), is their fear justified? Is it right to assume that, because the state can oppress others, it will also want to? And does that give weaker states a right to unite and attack the stronger state without any specific wrongdoing?” A state openly answering yes would only bring about the feared harm more surely and quickly. For the stronger power would strike before the smaller states could attack. And their alliance would offer little protection against a state skilled at applying the rule, divide et impera. So this rule of political strategy, when openly acknowledged, necessarily defeats its own purpose and is therefore wrong.

c. “If a smaller state by its geographical position breaks up the territory of a greater, so as to prevent a unity necessary to the preservation of that state, is the latter not justified in subjugating its less powerful neighbour and uniting the territory in question with its own?” We can easily see that the greater state dare not publish such a maxim beforehand; for either all smaller states would without loss of time unite against it, or other powers would contend for this booty. Hence the impracticability of such a maxim becomes evident under the light of publicity. And this is a sign that it is wrong, and that in a very great degree; for, although the victim of an act of injustice may be of small account, that does not prevent the injustice done from being very great.

c. “If a smaller state’s location divides a larger state’s territory, preventing the unity necessary for the larger state’s survival, is conquest justified? May the larger state conquer its weaker neighbor and unite that territory with its own?” We can easily see that the larger state would not dare announce such a principle beforehand. For either all smaller states would immediately unite against the larger state, or other powers would compete for the spoils. So making such a principle public clearly shows that it cannot be put into practice. And this failure shows that the principle is wrong, and gravely so. For although the victim of an injustice may be insignificant, the injustice itself can still be very great.

3.—Cosmopolitan Law. We may pass over this department of right in silence, for, owing to its analogy with international law, its maxims are easily specified and estimated.

3. Cosmopolitan Law. We may leave this area of law undiscussed. Because cosmopolitan law resembles international law, its principles are easy to identify and assess.

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In this principle of the incompatibility of the maxims of international law with their publicity, we have a good indication of the non-agreement between politics and morals, regarded as a science of right. Now we require to know under what conditions these maxims do agree with the law of nations. For we cannot conclude that the converse holds, and that all maxims which can bear publicity are therefore just. For anyone who has a decided supremacy has no need to make any secret about his maxims. The condition of a law of nations being possible at all is that, in the first place, there should be a law-governed state of things. If this is not so, there can be no public right, and all right which we can think of outside the law-governed state,—that is to say, in the state of nature,—is mere private right. Now we have seen above that something of the nature of a federation between nations, for the sole purpose of doing away with war, is the only rightful condition of things reconcilable with their individual freedom. Hence the agreement of politics and morals is only possible in a federative union, a union which is necessarily given a priori, according to the principles of right. And the lawful basis of all politics can only be the establishment of this union in its widest possible extent. Apart from this end, all political sophistry is folly and veiled injustice. Now this sham politics has a casuistry, not to be excelled in the best Jesuit school. It has its mental reservation (reservatio mentalis): as in the drawing up of a public treaty in such terms as we can, if we will, interpret when occasion serves to our advantage; for example, the distinction between the status quo in fact (de fait) and in right (de droit). Secondly, it has its probabilism; when it pretends to discover evil intentions in another, or makes, the probability of their possible future ascendency a lawful reason for bringing about the destruction of other peaceful states. Finally, it has its philosophical sin (peccatum philosophicum, peccatillum, baggatelle) which is that of holding it a trifle easily pardoned that a smaller state should be swallowed up, if this be to the gain of a nation much more powerful; for such an increase in power is supposed to tend to the greater prosperity of the whole world.¹⁵⁴

The principle that certain rules of international law cannot withstand publicity gives us a useful test. It shows when politics conflicts with morality, understood as the science of right. We must now ask under what conditions these rules agree with the law of nations. We cannot simply reverse the principle and conclude that all rules that withstand publicity are therefore just. Anyone with overwhelming power has no need to keep their rules secret. For a law of nations to be possible at all, there must first be a legal order. Without a legal order, there can be no public right. Any right we can conceive outside a legal order, in the state of nature, is merely private right. As we have seen above, some form of federation among nations is the only rightful arrangement compatible with their individual freedom. The federation’s sole purpose must be to end war. Politics and morality can therefore agree only within a federal union. The principles of right necessarily require such a union a priori. Establishing this union as widely as possible is the only lawful basis for all politics. Apart from this goal, all political sophistry is foolishness and disguised injustice. This sham politics uses moral hair-splitting unsurpassed by even the best Jesuit school. It has its mental reservation (reservatio mentalis). For example, we draft a public treaty in terms we can interpret to our advantage whenever the occasion arises. We might distinguish between the status quo in fact (de fait) and in law (de droit). Second, sham politics has its probabilism. It claims to detect evil intentions in another state. Or it treats the likelihood of that state’s future dominance as lawful grounds for destroying other peaceful states. Finally, sham politics has its philosophical sin (peccatum philosophicum, peccatillum, baggatelle). It treats the absorption of a smaller state as a trivial, easily forgiven matter, if a much stronger nation benefits. Such an increase in power is supposed to promote greater prosperity throughout the world.¹⁵⁴

Duplicity gives politics the advantage of using one branch or the other of morals, just as suits its own ends. The love of our fellowmen is a duty: so too is respect for their rights. But the former is only conditional: the latter, on the other hand, an unconditional, absolutely imperative duty; and anyone who would give himself up to the sweet consciousness of well-doing must be first perfectly assured that he has not transgressed its commands. Politics has no difficulty in agreeing with morals in the first sense of the term, as ethics, to secure that men should give to superiors their rights. But when it comes to morals, in its second aspect, as the science of right before which politics must bow the knee, the politician finds it prudent to have nothing to do with compacts and rather to deny all reality to morals in this sense, and reduce all duty to mere benevolence. Philosophy could easily frustrate the artifices of a politics like this, which shuns the light of criticism, by publishing its maxims, if only statesmen would have the courage to grant philosophers the right to ventilate their opinions.

Duplicity lets politics use either branch of morality, whichever suits its own purposes. Loving our fellow human beings is a duty. So is respecting their rights. But love is only a conditional duty, while respect for rights is unconditional and absolutely binding. Anyone who wants to enjoy the sweet satisfaction of doing good must first be completely certain of respecting those rights. Politics readily agrees with morality in the first sense, as ethics, to ensure that people give their superiors their due. But morality in the second sense is the study of rights, before which politics must bow. Here, politicians find it prudent to avoid agreements. Instead, they deny that morality in this sense has any reality and reduce all duty to mere goodwill. Philosophy could easily defeat the tricks of such politics, which avoids the light of criticism, by making its principles public. But philosophy could do so only if statesmen had the courage to let philosophers express their opinions openly.

With this end in view, I propose another principle of public right, which is at once transcendental and affirmative. Its formula would be as follows:—“All maxims which require publicity, in order that they may not fail to attain their end, are in agreement both with right and politics.”

With this aim in mind, I propose another principle of public right. This principle is both transcendental and affirmative. It can be stated as follows: “All rules of action that need to be made public to achieve their aims agree with both right and politics.”

For, if these maxims can only attain the end at which they aim by being published, they must be in harmony with the universal end of mankind, which is happiness; and to be in sympathy with this (to make the people contented with their lot) is the real business of politics. Now, if this end should be attainable only by publicity, or in other words, through the removal of all distrust of the maxims of politics, these must be in harmony with the right of the people; for a union of the ends of all is only possible in a harmony with this right.

For if these principles can achieve their aims only by being made public, they must serve humanity’s universal goal: happiness. Supporting that goal (making people content with their lives) is the true task of politics. Now suppose this goal can be achieved only by making political principles public. In other words, suppose it requires removing all distrust of those principles. Then those principles must respect the rights of the people. For everyone’s aims can be brought together only if those rights are respected.

I must postpone the further development and discussion of this principle till another opportunity. That it is a transcendental formula is quite evident from the fact that all the empirical conditions of a doctrine of happiness, or the matter of law, are absent, and that it has regard only to the form of universal conformity to law.

I must leave further development and discussion of this principle for another occasion. The principle is clearly a transcendental formula because it contains none of the empirical conditions of a theory of happiness, or the matter of law. Instead, the principle concerns only the form of universal conformity to law.

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If it is our duty to realise a state of public right, if at the same time there are good grounds for hope that this ideal may be realised, although only by an approximation advancing ad infinitum, then perpetual peace, following hitherto falsely so-called conclusions of peace, which have been in reality mere cessations of hostilities, is no mere empty idea. But rather we have here a problem which gradually works out its own solution and, as the periods in which a given advance takes place towards the realisation of the ideal of perpetual peace will, we hope, become with the passing of time shorter and shorter, we must approach ever nearer to this goal.

If we have a duty to establish a state governed by public law, and good grounds to hope we can, then perpetual peace is no empty idea. This remains true even if we can only approach that ideal through progress continuing without end. Until now, so-called peace agreements have been falsely named, since they have merely suspended hostilities. Perpetual peace would follow these agreements. Rather than an empty idea, perpetual peace is a problem that gradually works toward its own solution. We hope that, over time, each advance toward this ideal will take less and less time. As these intervals grow shorter, we must come ever closer to the goal.