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

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СКАЧАТЬ principle, but allowed exceptions that were justified pragmatically. Frederick claimed it was necessary to intervene in institutions ‘from time to time’, because institutions inevitably degenerate.²¹ Frederick was convinced that this was the case when he interfered in the Miller-Arnold dispute. A miller named Johannes Arnold from Züllichau had appealed to the king after having been rejected by courts of the first and second level of jurisdiction. Frederick intervened four times in the legal procedure. This interference provoked Kant’s protest, if only in an unpublished reflection (XIX, 607, 21–4; see below). The example illustrates the deep-rooted incompatibility between Kant’s legal doctrine, which refers to principles of right, and Frederick’s flexible policy, which relies on ‘maxims of prudence’. Still, Kant could argue that Prussia developed gradually towards a state of affairs which he described in his writings. Significantly, he downplayed Frederick’s violation of the separation of powers, comparing it to a ‘heavy hailstorm’ that does not diminish beautiful weather (XIX, 607, 24). Kant’s and Frederick’s theories of the state even converge in the promotion of welfare institutions for the poor and sick. Frederick planned to pay pensions to the widows of his officers (after all, there were plenty).²² Although Kant is frequently seen as an advocate of the minimal state, this interpretation is mistaken. Kant believed that the state has a juridical duty – albeit not a strict one – to care for the needs of its citizens (VI, 326).²³

      Kant was of course aware of the legal reforms going on in Prussia. He corresponded with Ernst Ferdinand Klein, the co-author of the Allgemeines Landrecht and a member of the Mittwochsgesellschaft.²⁴ Klein asked whether limitations on legal freedom had to be abolished immediately. In his opinion, the people should be set free gradually (letter to Kant, 22 December 1789; XI, 118). Prussian laws were filled with arbitrary restrictions. Klein held that they could be excused, but not fully justified. Klein’s ‘excuse’ was pragmatic. Enlightenment was (the result of) a gradual process, and abrupt changes would be ineffective against the force of popular opinion. Like Carl Gottlieb Suarez, Klein argued for the independence of jurisdiction. In 1787, Klein claimed in an essay on the legal system of Austria that it was ‘depressing’ for a people if it realized that ‘life, freedom and property’ depend on the whim (Laune) of a single person.²⁵

      Kant’s concept of reform was not very different from Klein’s. Principles of natural right should not be realized ‘at once and by violent measures’ (VIII, 372, 23–4), otherwise, the moral politician might become a ‘despotic moralist’ acting ‘contrary to political prudence by adopting or recommending premature measures’ (VIII, 373, 9–10). Kant probably had the reforms of Joseph II of Austria in mind. Reforms should avoid both anarchy (a relapse into the state of nature) and stagnation. Unjust laws and deficient political structures should be kept rather than abolished if there was nothing to replace them. What is significant here is that Kant assigns a crucial role to political prudence or expediency and takes experience and human weakness into account. However, these pragmatic considerations are always subordinate to morality, natural right and the idea of practical reason. Experience, for instance, helps us to learn how to apply theory ‘in better and more universal ways after we have assimilated it into our principles’ (VIII, 289, 2–4). This distinguishes Kant’s theory from an exclusively pragmatic or empirical approach.

      Kant’s political philosophy reflects upon how ‘pure’ principles of right can be put into practice. It advocates ‘reform from above’, where the state ‘will reform itself from time to time, pursuing evolution instead of revolution and will thus make continuous progress’ (VII, 93, 8–9). These are the roots of Kant’s love affair with enlightened absolutism. Frederick seemed to fulfil Kant’s demands, pursuing reform while at the same time avoiding the threats of revolution and anarchy.

      Domestic policy III: the process and progress of Enlightenment

      For Kant, successful domestic reform was the result of a creative interplay between an enlightened ruler like Frederick and the public. Citizens established a public sphere or civil society among each other, discussed ideas and proposed reforms, hoping that the ruler respected their ‘freedom of the pen’. Kant wrote his essay ‘What is Enlightenment?’ (1784) when the Prussian reforms of the eighteenth century reached their climax. Frederick’s reputation had suffered in 1779 when he intervened in the Miller-Arnold dispute. Beginning with his order of 1780, his prestige improved again and reached a peak in 1784. After Frederick’s death in August 1786, and particularly after the outbreak of the French Revolution, reforms in Prussia virtually came to a standstill. We should understand these developments and the ‘climate’ of reform and the discussions among citizens to understand Kant’s enthusiasm in the 1784 essay.²⁶

      Perhaps Kant was also influenced by developments in the Habsburg monarchy. Joseph II ascended to the throne in 1780, after the death of his mother Maria Theresa. He went much further than Frederick, attempting to reduce the privileges of the nobility and the clergy, abolishing serfdom (Leibeigenschaft) from 1781 onwards, establishing equality before the law and religious toleration.²⁷ Joseph actively pursued fundamental changes in the social structure and the constitution. He claimed in August 1789 that the decision of the French National Assembly to abolish feudalism and to create a bill of rights was plagiarism of his own policies; and he was not too far away from the truth.²⁸ This assessment was echoed by August Ludwig von Schlözer, who wrote that the positive accomplishments of the French Revolution had partly (and peacefully) been achieved by enlightened absolutism, and that the rest would be realized in a ‘revolution from above’.²⁹ Many Enlightenment authors seem to have agreed. Klopstock, Lessing, Wieland, Herder and Pestalozzi were initially enthusiastic about the prospect of Joseph’s rule (although many changed their minds after 1785).³⁰ Joseph’s brother, Leopold II, was probably the most revolutionary of these three rulers (Frederick II, Joseph II and Leopold II). In 1783, he advocated constitutional monarchy in the preparatory work for a draft of a constitution for Tuscany. Influenced by the American Revolution, he argued that ‘a limited monarchy in which the executive power is freely placed in the hands of an individual and the legislative power in those of a nation’s representatives, is of all governments the best’.³¹ Leopold’s political ideas indeed anticipated classical nineteenth-century liberalism, advocating popular sovereignty, the rule of law, the separation of powers, inalienable natural rights and even the right of revolution.³²

      Of course, Kant had no access to these unpublished letters and written statements. On the other hand, he was well informed about developments and events in European countries, partly through newspapers, partly through his practice of encouraging lengthy lunchtime discussions over the years. Kant avoided discussing his own critical philosophy and encouraged general topics, with current political affairs and religious matters predominating.³³ Communicating with friends over lunch was part of the Enlightenment culture of eighteenth-century Königsberg. Kant calls the ‘freedom of the pen … the only safeguard of the rights of the people’ (VIII, 304, 15–20). As the people have no right of revolution, they should have the non-coercive right to criticize publicly what seems to be an injustice on the part of the ruler. The process of Enlightenment depends largely on the freedom ‘to make public use of one’s reason in all matters’. The public can only enlighten itself if it is allowed to communicate freely (VIII, 36–7; VIII, 144–7).

      Did Frederick grant freedom of the press? Kant’s essay gives us the impression that he did. Kant describes the essence of his rule as ‘Argue as much as you like and about whatever you like, but obey!’ (VIII, 37, 3–4). Kant’s assessment is too flattering. Frederick granted freedom of the press, but only to some extent;³⁴ censorship was never completely abolished under his rule. There was a division of labour between the king and his censors, and this arrangement contributed to the impression (and later the legend) that there was freedom of the press under Frederick. Whereas the censors had to follow strict regulations, Frederick conveyed the impression of being tolerant and permissive by allowing exceptions. He allowed free publication in the fields of philosophy and religion, but never permitted criticism of the state. Crantz, the editor of the Berlinische Correspondenz, СКАЧАТЬ