Kant and the Theory and Practice of International Right. Georg Cavallar

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СКАЧАТЬ I will argue that Kant offers a convincing response to these questions.

      In Antimachiavell (1740), Frederick defends monarchy as the best form of government, provided that the king does his duty.¹¹ In the Essai sur les formes de gouvernement et sur les devoirs des souverains (1777), Frederick adopts a modified doctrine of a social contract. Because of this contract, the ruler is ‘le premier serviteur de l’état’. This characterization appears at least six times in Frederick’s writings.¹² Frederick is careful to call the ruler the first servant of the state rather than of the people. He rejects popular sovereignty as a dangerous concept, and defends absolute monarchy as the best form of government with pragmatic arguments.

      Kant approves of Frederick’s self-characterization at least twice in his writings. Perpetual Peace (1795) cites Frederick’s rule as an example of the autocratic form of sovereignty ‘which accords with the spirit of a representative system’, and thus with the republican form of government, or Regierungsart. ‘Thus Frederick II at least said that he was merely the highest servant of the state’ (VIII, 352, 32–3). Kant is ironic, giving us the impression with the phrase ‘at least (wenigstens)’ that enlightened absolutism is the lesser of two evils. He adds irony by emphasizing the word ‘said’, suggesting that practice did not always correspond to theory, and that words were bold but deeds were few. Kant’s second reference to Frederick’s famous saying is a footnote in the Anthropology (VII, 332).

      There is another interesting parallel between Frederick’s and Kant’s writings. In his 1777 essay, Frederick writes about the ruler that s/he ‘is only the first servant of the state, obliged to act with wisdom and disinterestedness, as if at any moment he had to render an account of his administration to his citizens’ (my emphasis).¹³ Frederick emphasizes a ruler’s moral responsibility towards their citizens, though it must be said that he never intended to be really accountable. However, Kant apparently saw this as a step in the right direction. Reflecting upon the function of the idea of the social contract in non-republican states, he claims a similar moral responsibility. The idea of the social contract ‘can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation, and to regard each subject, in so far as he can claim citizenship, as if he had consented within the general will’ (VIII, 297, 16–20). In both cases, the ruler or legislator is supposed to engage in a kind of mental or intellectual experiment, asking if one’s intended law or action is compatible with the will of the majority of the citizens. Perhaps my interpretation is too far-fetched: however, I believe that Kant was eager to look for any elements in Prussian politics (theory and practice) that would point away from plain despotism.

      Given that the sovereign wishes to reform the state, autocracy is more effective than aristocracy or democracy in approaching republicanism (VIII, 353, 5–8; VI, 340). At the same time, Kant points out that autocracy is very dangerous for the people, ‘for it is extremely conducive to despotism’ (VI, 339, 14–15). He also wants to make sure that people are not satisfied with a form of sovereignty that is, by the standards of his own theory, only provisional. Thus he implicitly ridicules Frederick’s claim that absolute rule is the best form if the ruler is competent. Criticizing a similar theory by the Swiss-born moderate royalist Mallet du Pan, Kant argues that to reason that ‘whatever is best administered is best’ amounts to a tautology (VIII, 353, 28; VI, 339, 19–25).

      Domestic policy II: the separation of powers and the politics of reform

      With one feature of republicanism, that of the separation of powers (VI, 228–9), Frederick agreed in principle and mostly followed in practice. Kant’s hope for progress is, above all, a hope for legal progress through continuing improvement of political constitutions. Consequently, Kant seeks evidence for this thesis in his own age, and finds it in the reforms of enlightened absolutism.

      In 1722, Frederick William I established the general directory (Generaldirektorium), a central institution for domestic, military and financial affairs. Some years later he added a cabinet ministry for foreign affairs. The third major institution was the Privy Council for legal matters. Jurisdiction and administration were not separated, and jurisdiction gradually lost some of its functions to administration. Legal reforms in Prussia can be divided into two phases.¹⁴ The first occurs between 1746 and 1756, when Gross-kanzler Samuel von Cocceji reorganized the legal system by trying to unify rather than change it. The content of the law remained the same. Reform was part of the general effort of the absolutist state to centralize the government. The king put the Codex Fridericianus Marchicus, the new code of criminal procedure, into effect between 1747 and 1749, which the Corpus Juris Fridericianum remained unfinished. Cocceji’s death and the outbreak of the Seven Years War ended the first ‘wave’ of reforms. After 1780, Johann Heinrich Carmer reformed the legal system; Carl Gottlieb Suarez, the main author of the Allgemeines Landrecht für die Preussischen Staaten (1794), and Ernst Ferdinand Klein assisted him. Until that time, the court for farmers was the Patrimonialgericht, which their masters controlled. Legal equality was non-existent. A fair trial was impossible if defendant and judge were one and the same person or institution. In 1781, another new criminal code, called Corpus Juris Fridericianum, was adopted. The main task of the second wave of reform was to codify a new statute-book. In 1784 Carmer finished the first parts of Entwurf eines allgemeinen Gesetzbuchs für die Preußischen Staaten (1787). It was published and presented to the public to be evaluated and criticized. The second part of the draft appeared in 1785. Frederick commented, ‘laws must be short and should not be too extensive’, and, in a lecture before the Mittwochsgesellschaft in June 1788, Suarez referred to this comment as one of Frederick’s more famous marginalia.¹⁵

      After Frederick had died in 1786, the impetus of reform was lost. The Allgemeines Gesetzbuch für die preussischen Staaten (1791) was scheduled to become effective on 1 June 1792. However, Frederick William II, frightened by events in revolutionary France, suspended it. The Allgemeines Landrecht was finally put into effect because of events in foreign policy.¹⁶ In 1793, Prussia acquired additional Polish territories in the second partition, and unifying the country with a common legislation seemed a prudent choice. The general law of the country reaffirmed the traditional structure of society. Attempts to improve the predicament of farmers were not successful. Serfdom was only partly abolished. Nevertheless, the Allgemeines Landrecht was influential, and it kept most of the constitutional elements that its authors, representatives of the Berlin Enlightenment, had suggested. Frederick had initiated the legal reforms that culminated in the Allgemeines Landrecht after his death.

      In theory, Frederick proclaimed legal equality, one of Kant’s central demands (VIII, 291–4; VIII, 350–1; VI, 314). Before the court, prince and farmer should be equal.¹⁷ This theory was almost completely put into practice, giving Prussia a fair legal system. Civil rights, religious and intellectual freedom, the right to own property and land were protected.¹⁸ In the Political Testaments of 1752 and 1768, Frederick stated that he was not willing to interfere in legal procedures. Instead, he wanted to promote the independence of the courts, ‘for in the courts the laws should speak and the ruler should be silent’.¹⁹ Again Frederick agreed with the political doctrine of Kant and many other Enlightenment philosophers. The rule of law characterized the ideal political system. Kant claimed that the republican constitution was ‘the only lasting political constitution in which the law is the sole ruler (selbstherrschend), independent of all particular persons’ (VI, 341, 1–2; cf. VI, 355, 20–1). There was one major difference between Frederick and Kant. The former justified the independence of the courts with pragmatic reasons. No ruler could deal with all details of a legal dispute. Above all, the ruler should invest his time in other branches of the government.²⁰ Frederick was apparently thinking about trade, the economy, the military and foreign affairs. He dedicated almost two-thirds of his testaments to his army and foreign relations. In contrast to Frederick, Kant wanted to derive the independence of the courts from the principle of the separation of powers (VI, 338–9). This principle was in turn derived from the idea СКАЧАТЬ