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Kant and the Just War Tradition

Thomas Mertens*

1 Introduction: the ‘triumph’ of Just War Theory

In 2004, the just war theorist Michael Walzer published a collection of his essays entitled ‘Arguing about War’.1 In the opening chapter, he claims that the vocabulary of the just war tradition now dominates philosophical discussions about war: as he puts it, ‘the triumph of just war theory is clear enough’. According to Walzer, when we discuss war, we no longer do so in the categories of the doctrine of realism, according to which in- ternational relations should not be measured by considerations of justice, but by those of national interest and force alone. Instead, we use other categories inspired by an old doctrine according to which ‘war’s occasions and its conduct’ should be measured by considerations of justice: the jus- tice or injustice of the outbreak of war and the justice or the injustice of the conduct of it – known in homage to their Middle Age origins as the doctrines of ‘jus ad bellum’ and the ‘jus in bello’. The years since the pub- lication of Walzer’s collection appear to confirm his claim. In contempo- rary consideration of war, recourse to the moral discourse of the just war tradition seems inevitable. No politician can afford to argue in favour of or against military action solely in terms of national interest and without reference to considerations of justice. These considerations are embedded in international law. The field of law with regard to the use of military force, as is frequently noted, is strongly indebted to the tradition of just war. Norms regarding the commencement of a war can be found pri- marily in the Charter of the United Nations, and those regarding the con- duct of war, primarily within the Geneva Conventions. President Obama, in his Nobel Peace Prize acceptance speech, explicitly endorsed the just

* This paper is based on a reflection on Kant’s juridico-political views during sev- eral years. I benefitted from comments by audiences at the Hermeneutics of Just War Thinking conference in Hamburg and at the European University Institute, both in 2009, and as always from Morag Goodwin.

1 Michael Walzer, Arguing about War (New Haven and London, 2004).

From Just War to Modern Peace Ethics, edited by Heinz-Gerhard Justenhoven, and William A., Jr. Barbieri, De Gruyter, Inc., 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/clevelandstate-ebooks/detail.action?docID=894075. Created from clevelandstate-ebooks on 2018-12-03 16:27:35.

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war tradition. In endorsing ‘the concept of a ‘just war’’, he suggested that ‘war is justified only when it meets certain preconditions: if it is waged as a last resort or in self-defense; if the force used is proportional, and if, whenever possible, civilians are spared from violence’. He further noted that ‘there will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified’.2

The pervasiveness of the just war tradition is such that some Kant scholars3 increasingly feel the need to interpret Kant’s theory of peace and international law within the lines of this tradition. Kant may have been fiercely critical of the just war tradition in his ‘towards perpetual peace’ – its representatives, Hugo Grotius, Pufendorf, Vattel and the rest are described as ‘sorry comforters’ who are dutifully quoted in justi- fying military aggression but whose arguments have never prevented states from resorting to war (ZeF, 350; Reiss 103)4 -, but these remarks, according to this new ‘school’ of interpretation, should not be taken at face value. Instead, emphasis is put on the most mature formulation of his ‘doctrine of right’, in which Kant clearly embraces the perspective of the just war doctrine. Of course, this interpretation is not uncontest-

2 Barack Obama, Nobel Lecture, 2009, available at: http://nobelprize.org/nobel_ prizes/peace/laureates/2009/obama-lecture_en.html.

3 I mention: Brian Orend, War and International Justice. A Kantian Perspective (Waterloo, 2000), 41–64; Susan Meld Shell, “Kant on Just War and ‘Unjust En- emies’.” In Kantian Review 10/1 (2005): 83–111; Sharon B. Byrd and Joachim Hruschka, “Kant, das Recht zum Kriege und der rechtliche Zustand im Verh�lt- nis der Staaten zueinander.” Archiv f�r Rechts- und Sozialphilosophie 94/1 (2008): 70–85.

4 References and abbreviations: references to Kant’s writings are given in brackets. The first page number refers to the Prussian Academy Edition (Berlin: De Gruyter 1968), the second page number to the English translation in Hans S. Reiss, Kant’s Political Writings (Cambridge University Press, 1970) (Ed. with in- trod. and notes H. Reiss. trans. by H. B. Nisbet = Reiss); or to the English trans- lation in: Mary J. Gregor, trans and ed. (= Gregor), Immanuel Kant, Practical Philosophy. Cambridge Edition of the Works of Immanuel Kant, (Cambridge: Cambridge University Press, 1996). The following abbreviations are used: Idee = Idee zu einer allgemeinen Geschichte in weltb�rgerlicher Absicht (AE, VIII); TuP= �ber den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht f�r die Praxis (AE, VIII); ZeF = Zum ewigen Frieden (AE, VIII); Rel = Die Religion innerhalb der Grenzen der bloßen Vernunft (AE, VI); MdSR = Die Metaphysik der Sitten, Rechtslehre (AE, VI); SdF = Die Streit der Fakult�ten (AE, VII); Refl = Reflexionen zur Rechtphilosophie (AE, XIX) .

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ed.5 Traditionally Kant’s writings are read as emphasizing the need to es- tablish international institutions in order to create a lasting peace and that the just war tradition, as primarily a moral (and not a legal) doctrine, lacks this outlook. Kant’s theory of law is thus understood primarily as a theory of global peace in which any legal ground to start military hos- tilities is explicitly excluded.6

How, then, should we understand Kant’s thinking on war and peace? Is it necessary to shoe-horn his work into the popular mode of thought in order for it to have relevance for our times? Our starting point should be the texts themselves, and the acknowledgement that Kant indeed rejected the ‘realist’ position, but that he at the same time also rejected the kind of ‘immediate’ pacifism according to which the abolition of war is possible without the establishment of cosmopolitan legal rules and institutions.

2 Kant’s rejection of both pacifism and realism

There can be little doubt that Kant was a pacifist in the sense in which ‘pacifism’ denotes the view that war necessarily entails immoral human behaviour and should therefore be condemned. According to Kant, prac- tical reason pronounces the irresistible veto: ‘there shall be no war’ (MdSR 354; Reiss 174). For Kant, this implies at least two things. The first is a reflection on the institutional conditions under which war can be abolished and a lasting peace upheld. Kant argues here, as is well known, that it is both the internal structure of the so-called repub- lican state as well as the international legal order between states that are important. What this means in more detail is the object of a wide range of interpretations. Some have argued that a republican way of governing is reconcilable with different constitutional orders, while others have con- tended that Kant clearly favours a liberal democratic constitution. In terms of international relations, again it has been argued that Kant advo- cated or intended to advocate a form of world government; others instead

5 Georg Cavallar, “Commentary on S. Meld Shell’s ‘Kant on Just War’ and ‘Unjust Enemies’: Reflections on a ‘Pleonasm’.” In Kantian Review 11/1 (2006): 117– 124. Thomas Mertens, “Warring to End War (Review of B. Orend, War and In- ternational Justice).” In The Review of Politics 64/3 (2002): 558–560.

6 Gerhard Beestermçller, Die Vçlkerbundsidee (Stuttgart, 1995), 19–93; Georg Geismann, “Kants Rechtslehre vom Weltfrieden.” In Zeitschrift f�r philosophische Forschung 37/3 (1983): 362–388, esp. 372.

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emphasize the federal character of Kant’s peace-proposal.7 The second issue is what follows from practical reason’s prohibition of war under non-ideal circumstances, to borrow Rawls’s terminology. Should we sim- ply stop engaging in war and expect that peace will follow? Yet Kant does not believe that we can simply rely on the peace loving nature of man- kind. Kant’s view of human nature is rather grim. War itself, writes Kant, ‘does not require any particular kind of motivation, for it seems to be ingrained in human nature’. (ZeF 365; Reiss 111) Elsewhere, he emphasizes the importance of war in the development of mankind.

Yet, this does not mean for Kant as it does for the ‘realist’ that we sim- ply have to learn to live with war. For Kant, the importance of war in the history of mankind does not exclude the possibility of peace and his re- jection of realism is not built on moral considerations alone. For Kant, ‘realism’ is nonsensical as a political theory. He saw it as constituting an impossible basis upon which to develop guidelines for decision making and acting in the international sphere. Given this, politicians that rely upon the doctrine of realism inevitably make use of the concept of right. (ZeF 355, 380; Reiss, 103, 125) Man’s ‘warlike’ nature does not make ‘realism’ inevitable, but rather demands moral and legal considera- tions. This does not solve the question as to how we should act in ordi- nary situations in which lasting peace has not been realised. If morality is relevant in the international realm at the same time as the war prone na- ture of mankind is true, would not the tradition of just war thinking be the most likely position? Does Kant’s moral condemnation of war under non-ideal circumstances apply solely to unjust wars or to wars in general, only to the unjustified means of waging war or to all means? Can a war ever be justified according to Kant? The most relevant texts with regard to what Kant calls ‘status iustitia vacuus’ (in the preliminary articles of To- wards Perpetual Peace and in several paragraphs in the Rechtslehre) seem to point in different directions. This confusion is all the greater when we place Kant into his historical context.

The 17th and 18th century saw a number of authors advocate peace, notably Crus�, Sully and the Abb� of St. Pierre, but their proposals were rarely met with approval. Therefore Kant’s sympathy for the

7 See e.g. Sidney Axinn, “Kant on world government.” In Proceedings, eds. Ger- hard Funke and Thomas Seebohm, Sixth International Kant Congress (Washing- ton, 1989), 243–251; Otfried Hçffe, “Die Republik frei verb�ndeter Vçlker.” In Kategorische Rechtsprinzipien. Ein Kontrapunkt der Moderne, ed. O. Hçffe (Frank- furt, 1990) 249–279.

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Abb�’s Projet pour rendre la paix perp�tuelle en Europe (1712–3) was a rare exception (Idee, 24; TuP, 313; Reiss, 47, 92). Voltaire ridiculed the Abb�’s proposal as a chimera and Leibniz was reminded ‘of a device in a cemetery, with the words: Pax Perpetua; for the dead do not fight any longer: but the living are of another humour; and the most powerful do not respect tribunals at all’.8 Kant’s position was therefore odd in its own day in constituting a combination of supporting the prospect of peace at the same time as seemingly accepting the realist position of war as an intrinsic feature of human nature. The latter places Kant closer to Hobbes, often considered the intellectual father of ‘realism’ and there- fore Kant’s ‘natural’ counterpart, than is frequently admitted by Kant- ians.9 To Hobbes’ dictum of war as the ‘status hominum naturalis’, Kant merely adds that it is not necessarily a ‘bellum omnium in omnes’, but a ‘status belli omnium in omnes’. (Rel, 97n.) According to Kant, war is not limited to man’s public life, but also plays a dominant role in his pri- vate realm, as marriage, so Kant felt, proves. Marriage, Kant writes, is often depicted in terms of love. Yet, the relationship between husband and wife is seldom without conflict and therefore requires legal regula- tion. Without such regulation, even those bound by the most intimate relations would treat each other solely as objects instead of as ends in themselves. It is Kant’s insistence on the warlike nature of man – his real- ism – that makes his pacifism so confusing. Is it possible to reconcile them?

We need to go back to Kant’s interpretation of the realist position and his view that the position of the ‘practical politician’ is an impossible one. For Kant, although this ‘practical politician’ despises the theoretical, i.e. moral, politician and holds that one should act on the basis of experience and not of moral ideas, he is unable to formulate valid guidelines for via- ble policies. Kant’s argument runs as follows: imagine that it is in the state’s interest to pursue peace. Is the realist able to conceive of ways of upholding such ‘peace’? In studying the chaotic and unceasing series of clashes between nations he would develop a poor theory for action, name- ly that of pursuing peace through an equilibrium between nations. Yet, such an equilibrium is necessarily unstable and fragile, according to

8 It is likely that the opening of Kant’s ZeF (343, Reiss, 93) is a reference to this. See Gottfried Wilhelm Leibniz, The Political Writings of Leibniz, ed. Patrick Riley (Cambridge, 1979), 183, 166.

9 As in Robert Kagan’s Of Paradise and Power: America and Europe in the New World Order (New York, 2003).

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Kant, because it depends on international actors’ assessment of each oth- er’s (changing) economic and military power. A state of balance could only come into being where these actors believe it to already exist and it is therefore dependent on subjective estimations and thus fragile and temporary. The objective of ‘peace’ by realistic means fails, and hostilities are likely to break out at any moment. (Rel, 97n.; TuP, 312; Reiss, 92) Realism produces similar results for the state whose interest lies in war. Again, the realist wants to derive a plan for action from experience. Yet, the results of his analysis are again unhelpful, as opportunistic guide- lines such as ‘act first and justify your acts later’, ‘deny everything’ and ‘divide and conquer’ will not be of much help. No-one can overtly sub- scribe to such ‘maxims’ because they are self-refuting. All that is left to the ‘realist’ is the concept of right. The fact that statesmen make use of moral concepts such as those formulated in the just war tradition is thus in a sense inevitable and does not necessarily constitute respect for considera- tions of justice.

While this argument shows that ‘realism’ is inconsistent and reference to morality inevitable, Kant adds a second element namely that war though immoral is instrumental in bringing about peace. Here we touch upon Kant’s teleological understanding of human history, accord- ing to which history itself, with all its instances of ‘realism’, is nonetheless oriented toward creating the conditions for a lasting peace. Kant’s under- standing of the possibility of peace is thus based on a combination of pragmatic considerations, moral imperatives and historical progress. In the post-metaphysical era in which we now live, the optimism Kant dis- plays with regard to the development of history cannot easily be shared. Fortunately, this optimism is not relevant for the discussion of whether Kant admits of the possibility of a just war, i.e. the legitimacy of the use of military force under non-ideal circumstances. Before I address that question straightforwardly, we need to consider Kant’s proposal for peace.

3 Kant’s theory of peace

Kant holds that lasting peace consists of three basic elements: republican constitution, federation of states and cosmopolitanism. These elements must be realised through moral actions within a historical process. This historical process is determined by what Kant calls: ‘man’s unsocial soci- ability’ (Idee, 20; Reiss, 44), according to which man’s social life is

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marked both by cooperation and conflict. Thus in the establishment of a republican constitution and a federation of free states, this ‘social unsoci- ability’ must be taken into account. A situation of lasting peace does not result from spontaneous harmony between men but by regulating their unsociability through law. A republican constitution will thus follow from a process of gradual and constant reform in which the violence on which any state was originally based will gradually give way to a po- litical system in which the laws are made in accordance with the general will of all who obey them. (ZeF, 350–1; Reiss, 99–100) The most im- portant constitutional element of the Kantian republic is that it puts the decision of whether or not to declare war into the hands of its citizens. This provision would, according to Kant, make the decision to go to war very unlikely as war contradicts the self interest of those selfsame citi- zens.

Yet, the republican constitution is not in itself sufficient for a lasting peace. Although self interest will inhibit citizens from embarking on war, a federal association of free states is still a necessity. In the absence of in- ternational rules, a state of nature would exist between the ‘free’ states. Even benevolent and law-abiding states would be confronted with what Kant calls the ‘a priori’ idea of a non-lawful condition as well as with the ‘a posteriori’ experience of conflicts even among the benevolent. Both individual men and states cannot be secured against acts of violence until a legal situation is established (MdSR, 312; Reiss, 137) and that re- quires an international federation of free states. (ZeF, 354; Reiss, 102) The fact that Kant opts for a federation and rejects the idea of a world state has been discussed widely. Kant seems to hold that a federation is able to establish a system of checks and balances –necessary in the light of man’s ‘unsociability’ – whereas the creation of a global centre of inter- national power would result in the tyranny of what Kant calls a ‘universal monarchy’. A federation of free states is therefore suitably sufficient from a legal point of view as well as realistic from an anthropological point of view, given the linguistic and religious differences among the peoples of the world. (Rel, 34n; ZeF, 367; Reiss, 113–4) Kant adds as the third condition for a lasting peace cosmopolitanism in the sense of a universal hospitality, which enables individuals and nations to seek peaceful, com- mercial contacts with one another. This third rule prescribes that foreign- ers and foreign communities treat each other with hostility. (ZeF, 358; Reiss, 106)

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4 The conditions for peace and the use of force

Summarizing our course so far: on moral grounds, Kant rejects war and advocates world peace. His peace proposal is not based on a rosy view of human nature, nor does he think that peace is an immediate possibility. Instead, the establishment of peace is a historical process in which the conditions for peace will eventually be realised. War should be taken se- riously as an essential element of human nature and thus of human his- tory; yet lasting peace is possible, both on prudential and moral grounds. But the question as to what this means for the present day, in which the three conditions of republicanism, federalism and cosmopolitanism have not been established, remains. Should Kant’s theory be given a pacific hue? Or should it rather be understood in line with the tradition of the just war? This question can be answered by further developing Kant’s argument, but there are various options for doing so and with dif- ferent outcomes.

One could focus on Kant’s proposal for a ‘federation of free states’ and continue the line of argumentation developed so far – what we shall call the first option. This would require answers to questions such as the nature of coercive force that should be attributed to such a feder- ation; and whether it would have the right to impose its judgements on non-cooperative member states by force or to coerce non-member states to join, given that such a federation is required for a lasting peace. Kant argues that it is a moral duty to leave the state of nature, both for indi- viduals and for states (MdSR 350; Gregor 487). He also argues that in- dividuals have the right to use force against each other in order to bring about a ‘status juridicus’: ‘one is authorised to use coercion against some- one who already by his nature, threatens him with coercion’. (MdSR, 307; Gregor 452) In more general terms, Kant argues that there is con- nected with right by the principle of contradiction an authorisation to co- erce someone who infringes upon it’. (MdSR, 231; Gregor 388) It there- fore is likely, if one follows Kant’s argument through, that what is true for individuals is true for states as well, authorising them to use force to bring each other out of the state of nature. And if this is the case, is it not an example of a ‘just war’?

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But does Kant indeed grant such permission? Is the analogy between individuals and states as straightforward as some commentators suggest?10

Kant is ambiguous here. On the one hand, he indeed stresses the analogy between the situation of individuals living in the state of nature and that of the states in the absence of international law. Both have the same ob- ligation to leave the state of nature. On that basis, states are obliged to enter into a federation of states, in which each of them derives its security from a ‘united power’ and its ‘law-governed decisions’. Elsewhere he writes: international law must be based upon public laws, which can be enforced and to which each state must submit. (Idee, 24, 26; Reiss, 47, 49; TuP, 312; Reiss, 92)

However, Kant stresses time and again that the analogy is limited. In- dividual states run a risk by accepting the strong ties represented by in- ternational law. A federation that resembles a ‘state’ might – because of its centralized power – develop into a hegemonic despotic regime and so destroy the realm of freedom already obtained by and within individ- ual states. Whereas natural right indeed obliges individual men to aban- don the lawless state of nature, the same is not equally true for states be- cause ‘they already have a lawful internal constitution’. Therefore ‘the co- ercive right of others to subject them to a wider legal constitution in ac- cordance with their conception of right’ is not applicable to them. (ZeF, 355; Reiss, 104) And even in the ‘Doctrine of Right’ Kant holds that the international alliance that is to replace the state of nature among states ‘involves no sovereign authority’ and ‘can be renounced at any time’ (MdSR, 344; Gregor, 483). Apparently, Kant conceptualises the legal re- lations between individuals differently than those between states. This is the basis for his rejection of the positive idea of a world republic in place of a negative substitute of a gradually expanding federation necessary in order to prevent war. (ZeF, 357; Reiss, 105) According to his final words on the subject, in the Doctrine of Right, the idea of international law merely demands a voluntary federation of peoples, which is to be renewed periodically. (MdSR, 344; Gregor, 483) This suggests that the moral ob- ligation to opt-in does not preclude the possibility of opting-out. The idea of a public right of states requires a ‘congress’, an ‘association’ of states which all states are ‘free’ to join. (MdS R, 350–1; Gregor, 488) De- spite the state of nature among them, states must join this ‘congress’ out

10 Sharon B. Byrd and Joachim Hruschka build their case on this analogy in: “Kant, das Recht zum Kriege und der rechtliche Zustand im Verh�ltnis der Staaten zueinander.” In Archiv f�r Rechts- und Sozialphilosophie 94/1 (2008): esp. 79–80.

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of their own will and not because of external coercion. It is indeed note- worthy that this remark on the liberty of the states to join and to leave the international congress is made in the context of the Rechtslehre, indeed Kant’s last formulation on this subject, on which the proponents of Kant as a just war theorist rest their claim. His statements concerning the need for stronger ties between states are generally made in his earlier texts, in the context of his philosophy of history. For this first option, then, it is far from certain whether Kant’s ‘league’ or ‘congress’ of nations could justifiably resort to war on the basis of a ‘jus ad bellum’.

The second option reflects on the situation in which there is not yet such a federation. Does a ‘jus ad bellum’ exist in the absence of interna- tional law and international institutions? It is inevitable here that we turn to Towards Perpetual Peace, in which Kant not only formulates the con- ditions under which a lasting peace is possible, but also the rules on how to act when these conditions are not fulfilled. These rules are formu- lated as prohibitions in the so-called preliminary articles. These prohib- itions are either of the strictest sort (enumerated in preliminary articles 1, 5 and 6) or of a more permissive kind (in articles 2, 3 and 4). The per- missive articles are relevant only indirectly: they stipulate the conception of a political community as a self-governing body; they prohibit states from having standing armies and of creating debts with an eye to prepar- ing for war. While the emphasis on political autonomy is obviously im- portant, the articles ‘of the strictest sort’ are directly relevant. They pro- hibit, respectively, the search for new grounds for war after the establish- ment of a peace agreement, the intervention of one state in the affairs of another out of respect for the integrity of a political community, and breaches of the jus in bello.11

Of these three prohibitions, Article 5 regarding intervention is espe- cially important: ‘no state shall forcibly interfere in the constitution and government of another state’. This can only mean that the integrity of all states, republican and non-republican alike, must be respected. Kant gives a number of reasons for why this is so. The first is that every state is a society of human beings and therefore cannot be disposed of by others without their consent. The concept of political community entails the right of a people to determine for itself a civil constitution. As such, im- posing on foreign communities a republican form of government would therefore be self-contradictory. The second reason for respecting the in-

11 The fact that Kant prohibits certain conduct during war obviously not make of him a just war theorist.

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tegrity of all states, regardless of their internal arrangement, is that inter- vention also constitutes a violation of the ‘harm principle’. Just as an in- dividual person cannot be punished as long as he does not harm others, a political society cannot be sanctioned if it does not violate the rights of other communities; internal violent turmoil is a bad example for other states, but it does not harm them. Hence, the mere fact of a non-republic constitution does not provide a casus belli and thus there is no right of interference.

For Kant, self-defence is the only legitimate ground for using force against another state. Kant’s preliminary article 3 prohibits standing ar- mies, both as a threat to peace itself and as a violation of the rights of a man in his own person. Citizens are only to be required ‘to undertake voluntary military training from time to time’ in order that they can de- fend ‘themselves and their fatherland against attacks from outside’ should the need arise. Of course, where they act in self-defence, states must re- spect unconditionally certain rules of what we now call humanitarian law. (ZeF 345–6; Reiss, 95–6)12 The second option – in the absence of a fed- eration of states – therefore points in a similar direction as the first: that of an explicit rejection of the just war tradition, and the only justification for war is self-defence.13

The third option, however, builds upon certain passages in the Doc- trine of Right in which Kant appears to take the opposite position, i.e. to subscribe fully to the just war tradition. This third option describes the quasi legal regime that Kant attributes to states in the (international) state of nature. While the first and the second option consider the legal infrastructure both after and before the establishment of the feder- ation, i.e. with and without positive international law, the third option suggests something entirely different, namely that states have certain ‘rights’. This is not to deny that the Doctrine of Right also emphasises the need to establish a federation but Kant presents us here nonetheless

12 It is remarkable to notice that Kant’s prohibition of these acts is based not only on their inherent evil character (‘intrinsically despicable’), but also on their effect for a future peace. This is a consequentionalist argument, that Kant fully accepts.

13 Kant adds that their argumentations as laid down in carefully drafted ‘philosoph- ically and diplomatically codes’ are ever dutifully quoted, but solely in the justi- fication of military aggression. Never has a state given up its desire to make war on the basis of their arguments. (ZeF, 355; Reiss, 103) In the state of nature, pol- iticians and states do indeed refer to the concept of right, including the concept of just war, but not to refrain from resorting to war. The tradition of just war gives them ample opportunity for abuse.

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(MdSR, 346–350; Reiss, 167–170) – in a rather straightforward man- ner – with the central tenets of the just war tradition. In the state of na- ture, he writes, the right to engage in war is the ‘permitted means’ by which a state ‘prosecutes its rights against another state’; yet because of the obligation to leave the state of nature, war should be conducted in such a manner that it leaves the possibility of a future federation intact. It is for this latter reason that certain means of warfare are forbidden: sol- diers should not become unfit as future citizens, nor should warfare de- stroy the mutual confidence that is needed for a future peace. In addition to these well known issues of jus ad bellum and jus in bello, Kant considers jus post bellum. Under this heading, Kant determines that while a victo- rious state may set the conditions of the peace treaty, it cannot claim compensation or bring the vanquished state under its rule. He also dis- cusses the rights of peace, namely the right of neutrality when neighbour- ing states are at war; the right of guarantee, which is the right to secure existing peace; and the right to form alliances for common defence. Fi- nally, Kant discusses the concept of an ‘unjust enemy’. On the basis of these passages, Kant clearly belongs to the just war tradition, including a right to resort to war on moral grounds.

5 Kant and the ‘jus ad bellum’?

Any acknowledgment of a ‘right to war’ introduces the distinction be- tween just and unjust wars; and it is on the supposed attribution to Kant of such an acknowledgment that some scholars have defended re- cent wars as justified on Kantian grounds.14 But is it really the case that Kant makes this distinction? A careful consideration of these passag- es in the Rechtslehre is necessary.

It is certainly true that Kant introduces the right to war as the ‘per- mitted means’ by which a state can claim its rights against another and he gives this right a very broad understanding.15 The right to war can

14 See e.g.: Volker Gerhardt, “Die Macht im Recht. Ideologie und Politik nach dem 11. September 2001.” In Merkur no. 651 (2003): 557–569; Roger Scruton, “Immanuel Kant and the Iraq war” (2003) In OpenDemocracy, available at: http://www.opendemocracy.net/faith-iraqwarphiloshophy/article_1749.jsp.

15 Kant is defended as a just war theorist by: S. Meld Shell, Kant on Just War and ‘Unjust Enemies’, 90, on the basis of a distinction between an ‘international state of nature’ and outright anarchy. I doubt whether this distinction is warranted by Kant’s texts.

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be invoked on the basis of both actively inflicted injuries and on the basis of threats. Moreover, whenever a state believes itself to be injured by an- other, by ‘an alarming increase of its power’ or even because it is simply ‘more powerful’, it has the right to war, including a preventive war. (MdSR, 346; Reiss, 167)16 In addition, Kant introduces the concept of an ‘unjust enemy’ and holds that the rights of a state against such enemy are unlimited, i.e. that any state can make use of all permissible means to assert its rights against such an enemy. This concept of ‘unjust enemy’ also has a broad meaning. ‘In accordance with international law’, it is defined as a state that displays a ‘maxim’ expressed either in word or deed that would make peace among nations impossible, i.e. it would lead to a perpetual state of nature if it were made into a general rule (MdSR, 312; Reiss, 137). Such a maxim is displayed, for example, when a state violates public contracts such as those assumed to be in the interest of all nations. These nations have then the right to unite against such an enemy and prevent such breaches of the common order. Kant adds that that these allied states do not have the right to destroy this unjust enemy, but they are nonetheless allowed to enforce on that state a consti- tution of a less warlike nature. (MdSR, 349; Reiss, 170) To the astonish- ment of devotees of Towards Perpetual Peace, Kant appears to argue here in favour of justified wars on the basis of a state’s own estimation of the violation of its rights.17 Not only does the right to war include preventive wars but it allows for what nowadays would be called ‘regime change’, possibly by a coalition of the willing.

It would seem that accepting such a right would be the best guarantee for perpetual war, since it makes every state judge in its own case. This ‘right to war’ contradicts Kant’s earlier remark, in Towards Perpetual Peace, that such a right is problematic, if not plainly contradictory, for it would indeed determine what is lawful not by universally valid laws, but by one-sided physical force. ‘Right’ cannot be decided by military force. (ZeF, 356–7; 355; Reiss, 105, 104) Could Kant have so radically altered his views in so short a period of time that he accepted a condition- al right to use force as a last resort or to enforce the judgment of a coa-

16 This is even more astonishing while Kant explicitly denies a right to such a pre- ventive war under the circumstances of a ‘potentia tremenda’ in Towards Perpetual Peace (ZeF, 384; Reiss, 128).

17 This is S. Meld Shell’s starting point in Kant on Just War and ‘Unjust Enemies’, 83–111; for a similar view, see: B. Orend, War and International Justice. A Kant- ian Perspective (Waterloo, 2000), esp. 51–56; Critically is: G. Cavallar, Commen- tary on S. Meld Shell’s Kant on Just War and ‘Unjust Enemies’, 117–124.

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lition of states on an unwilling state? Obviously, such a right to war would give states ample room to define what counts as justified casus belli, and thus open up the possibility of arbitrariness. How can one in- dependently decide on what counts as violations of what needs to become international law and on violations that would destroy the possibility of a league of republican states? (Refl, 598)

These inconsistencies suggest that the first impression of Kant’s texts must be wrong. His consideration of the ‘right to war’ and the ‘justified enemy’ fits only with the description of the international realm before the establishment of positive international law. In the ’state of nature’ each state has the ‘right’ to further its interests in any way it sees fit, including by use of the ‘right to war’. Analogously, individuals in the state of nature are ‘authorised’ to enforce their natural rights. As these rights cannot be made secure in the state of nature, Kant calls them ‘provisional’; individ- uals have the moral duty to enter into a civil constitution, under which these rights lose their provisional character and become ‘peremptory’.

This is the way to understand Kant’s concepts of ‘right to war’ and ‘unjust enemy’, namely as provisional rights, as the means by which states must secure their rights within the state of nature. The particular estima- tion of each state is the only thing that matters. This explains why the ‘right to war’ includes not only the right to self-defence in the case of ‘ac- tive injuries’, but also a preventive war against an alarming increase of the power of another state. What counts as self-defence is fully up to the state that feels its security under attack. In the state of nature, as Hobbes ex- plains in Leviathan’s famous chapter 13, even a trifle is sufficient to start a quarrel. Along similar lines, Kant writes that nothing more than an affront, an insult, would be enough to trigger the ‘right of war’. (MdSR 346, Reiss, 167)

On this basis, it seems likely that when discussing the ‘right to war’, Kant does no more than describe the provisional ‘right’ of each state in the international state of nature, in which states indeed define their ‘rights’ solely on the basis of their own interpretations and estimations. Consequently, it is a situation in which war can indeed break out at any moment. It could even be said that such a broadly understood ‘right to war’ defines the state of nature among states. This then sheds light on Kant’s use of the concept of ‘unjust enemy’: introducing the ‘right to war’ implies the concept of unjust enemy. Imagine a situation in which state A has been, by its own estimation, injured by state B and is seeking recompense. Whether the injury actually took place and whether the request for compensation is reasonable is entirely dependent

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on the interpretation of the states involved. In the state of nature, there is no procedure by which such a conflict can be settled impartially. If no agreement is reached, state A has no other option but to pursue its claim by forceful means, although the injury may consist of nothing more than the increasing military power of state B, which state A sees as a threat. Rather than limiting the reasons for which a resort to war is justified by the introduction of the criteria of the ‘jus ad bellum’, as the just war tradition in theory does, Kant argues that the ‘right to war’ knows no such limitations. It includes active and passive injuries, and it includes the right to self defence and to prevention. Inevitably, then, every state is able to claim that the resort to war is justified. It is ‘easy’ for a state to ‘pay homage’ to the concept of ‘right’. By declaring its cause ‘justified’, it simultaneously makes the claim that its opponent is an unjust enemy. Affirming the opposite, namely fighting against a just enemy, would be a contradiction. Indeed, Kant writes: ‘the expres- sion ‘an unjust enemy’ is a pleonasm in the state of nature, for this state is itself one of injustice. A just enemy would be one whom I could not resist without injustice. But if this were so, he would not be my enemy in any case’. (MdSR, 346; Reiss, 170)

The Rechtslehre gives two indications of why this line of argumenta- tion is sound. The first is the case in which states claim justifications. Kant rejects these claims. The European nations have justified their col- onial wars of conquest by claiming the right to establish settlements abroad by either violence or by fraudulent purchase. It would be in the best interest of the world as a whole and the territories were in any case unoccupied. Kant rejects these justifications. Even were one to sup- pose good intentions on the part of the colonizing Europeans, such inten- tions cannot wash away the ‘stain of injustice’, as Kant puts it. (MdSR, 266, 353; Reiss, 172–3). Colonial wars cannot be seen as ‘just wars’. In Towards Perpetual Peace, Kant condemns the wars between ‘civilised peoples’ categorically; in place of urging European states to restrict them- selves to just wars only, he demands that they subject themselves to an ‘external legal constraint’ prohibiting war. (ZeF, 354, Reiss, 103)

The second indication builds on what Kant writes about the conduct of war and its conclusion. Imagine again the situation of conflict between states A and B in which each of them claims to fight a justified war. Why would the justice of the war itself not justify the overruling of the restric- tions of the conduct of war, as some theorists of the just war tradition

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admit in the case of a supreme emergency?18 Why would the justice of the war not justify the seeking of compensation or the punishing of the enemy after victory? It is not evident within the tradition of the just war that considerations of ‘jus ad bellum’, ‘jus in bello’ or ‘jus post bellum’ are valid independently. Why can the justice of the cause of the war not set aside the limitations of the jus in bello and justify the rec- tification of the wrong after the war? Kant clearly states that this is not permitted. Regarding the ‘jus in bello’, he stresses that no war between independent states can be a punitive one as it would presuppose ‘a rela- tion between a superior and a subject which is not the relationship that exists between states’. For the same reason, Kant condemns wars of exter- mination and subjugation. (MdSR, 347; Reiss, 168) In the context of the right applicable after war, Kant writes that the victor may set the condi- tions for the peace treaty but that it may not claim compensation for the costs of the war because that would imply that the vanquished state had fought an unjust war. Although the victor may ‘hold’ that this is the case and that his opponent has committed a wrong against him, he cannot make use of that argument for therewith he would declare the war to be a punitive one. In the state of nature, the concept of a punitive war is ’self-contradictory’. (MdSR, 348; Reiss, 168) Would Kant indeed have accepted the concept of a ‘just war’, this would not be so evident. In the context of criminal law Kant holds that crimes ought to be pun- ished categorically. In other words: although every state when engaging in war must think that it wages a just war because otherwise it would fight a ‘just enemy’, this is irrelevant with regard to the conduct of war and to its conclusion. For Kant, the rules of the ‘jus in bello’ have cate- gorical validity; they cannot be set aside in the name of some supreme emergency derived from the ‘jus ad bellum’.19 Nor does a ‘just war’ affect the outcome of the war. The ‘right’ of the victor to set the conditions of peace is based solely on power not on ’the pretended right which he pos- sesses over his opponent because of an alleged injury the latter has done him’. (MdSR, 349; Reiss, 169) The conclusion must be, I think, that for Kant the statement that a state has the right to war is an analytical judge- ment in the state of nature. He does not support the theory of the just war.

18 This is argued in M. Walzer, Just and Unjust Wars (Basic New York, 1977), esp. Chapter 16.

19 See: Th. Mertens, “Kant’s Cosmopolitan Values and Supreme Emergencies.” In Journal of Social Philosophy 38/2 (2007): 222–241.

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6 Conclusion

The main topic of this paper was a consideration of Kant’s prohibition of war under non-ideal circumstances, and whether it needed to be under- stood as distinguishing between just and unjust wars. The first two inter- pretive options clearly reasoned against the acceptance of a right to war. Here Kant only accepts a limited right to self-defence by citizens who un- dertake a ‘voluntary military training’. (ZeF, 345; Reiss, 95) The third line of argumentation followed Kant’s apparent endorsement of the ele- ments of the just war tradition in the Doctrine of Right. Yet, by introduc- ing concepts such as ‘right to war’ and ‘unjust enemy’ Kant merely de- scribes the implications of the international state of nature. Indeed, the moral imperative urges us to leave this situation, including the supposed ‘right to war’, behind. Until that moment ‘all international rights, as well as the external property such as can be acquired or preserved by war, are purely provisional’. (MdSR, 350; Reiss, 171) Kant may be ambiguous on how the international state of nature should be overcome institutionally in mentioning both a ‘universal union of states’ and a ‘permanent con- gress of states’, but he is not ambiguous about his rejection of the just war tradition.

For as long as states remain in the state of nature, the quasi legal re- gime Kant describes consist of the main elements of the just war tradi- tion. States have the provisional right to defend their own interests, and they have to do so within the boundaries of the jus in bello. However, Kant does not accept this tradition because he does not believe that its central elements – just authority, just cause, just intention, ultimate resort and reasonable chance for success – deal adequately with the immorality of war. The just war tradition is not able to constrain the ‘wicked frenzy’ of war. (ZeF, 357; Reiss, 105) Only international law can do so. Accord- ing to Kant, the hope that international relations can be regulated by means of such a moral ‘right to war’ is a vain one. Thus what is needed is the transition from a lawless world of provisional rights to a world gov- erned by peremptory rights by means of the preliminary and definitive articles for a perpetual peace. Such a peace is for Kant the supreme polit- ical good. (MdSR, 355, Reiss, 175) With all the benefit of hindsight, we know that Kant was too optimistic about the pace with which these ar- ticles could be achieved. Yet, the important lesson that Kant teaches us is that the just war tradition is not a genuine alternative. In place of limit- ing the occurrence of wars, the prime function of just war theory is to justify the resort to war. Its representatives are merely ‘sorry comforters’.

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