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

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СКАЧАТЬ of the pen’. This freedom rested on Frederick’s firm grasp on domestic policy, which emphasized a strong army. Kant did not idealize Prussia as a land of political freedom. Rather he saw it as an oppressive country that simply could afford, because it was so oppressive, to grant freedom in certain, limited areas. The British traveller John Moore commented on Prussia: ‘A government, supported by an army of 180,000 men, may safely disregard the criticisms of a few speculative politicians, and the pen of the satirist.’⁴⁷

      Kant distinguished between ‘public’ and ‘private’ uses of reason. People who are entrusted with civil posts or offices must obey as employees of the government. As persons of learning (Gelehrte) and members of ‘cosmopolitan society’, they are entitled to use their reason freely, ‘addressing the entire reading public’ (VIII, 37). Here Kant actually followed a distinction drawn by Karl Abraham Freiherr von Zedlitz, head of the geistliches Departement (responsible for church matters and education) and subsequently minister of justice. In two cases, Zedlitz had ruled that the clergy should enjoy freedom of speech in articles designed for the reading public, but should take responsibility as representatives of their respective churches.⁴⁸ Kant was familiar with these cases; the second involved Johann Heinrich Schulz in 1783. Kant probably alluded to these events when he wrote that Frederick allowed ‘ecclesiastical dignitaries … in their capacity as scholars’ to express their opinions ‘freely and publicly’ (VIII, 40, 36–41, 2). Kant’s distinction between public and private use of reason is not only normative but also at the same time descriptive. As a consequence, it is quite difficult to distinguish between normative elements (which belong to the a priori theory), descriptive ones (based on recent experience), and those that serve as a link and mediate between the two.

      In part, Kant’s essay on the Enlightenment was a document of the ‘gentlemen’s agreement’ between the autocratic ruler and the Enlightenment philosophers. Frederick allowed intellectual freedom, which he considered, together with Kant, as ‘innocuous’. The philosophers, for their part, accepted the command that their writings should be abstract general reflections. Some – Kant was apparently one of them – might have hoped they would eventually undermine the political system itself.⁴⁹

      Domestic policy IV: limits of Frederick’s domestic policy

      One goal of Frederick’s policy was to preserve the Prussian aristocracy; middle-class people should have no opportunity to acquire the property of the nobility.⁵⁰ The aristocracy was an indispensable reservoir for army officers that Frederick needed for his military campaigns. In this respect, Frederick was deeply conservative and wanted to preserve the old social order, again for pragmatic reasons. Like many other Enlightenment philosophers, Kant criticized ‘hereditary prerogatives or privileges of rank’ (VIII, 292, 24–5) as violating the principle of legal equality. In Frederick’s Prussia, social mobility was only partially permitted. The king attempted to preserve the hereditary aristocracy, while Kant wanted to replace it with ‘a nobility of office’ based on merit (VIII, 350).

      Nevertheless, Frederick’s Prussia was not a ‘closed’ society. Some social mobility was possible within and between the corporate structures of the Old Regime.⁵¹ Kant himself is a good example of a poor student from ‘the plebeian depths’ who obtained a respected faculty position at Königsberg University.⁵² Others, with the help of a university degree and patronage, became clergy or bureaucrats. Pietism set the foundation for the modern concept of professionalism and, by the 1770s, the arguments for talent over birth had prevailed. Kant supported this development in his essay on ‘Theory and Practice’ (1793), advocating a political system that provided the citizens with the opportunity ‘to reach any degree of rank […] through one’s talent, one’s industry and one’s good fortune’ (VIII, 292, 21–3).⁵³ Yet this was a development Frederick hardly supported, and it was rather an indirect result of the ‘freedom of the pen’ that the king was willing to grant. Again, Frederick’s social policy was conservative and reasserted the dominance of the aristocracy.⁵⁴

      Kant argued that enlightened absolutism’s concept of the end of the state was mistaken. It lent itself to despotism, as the ruler tended to deprive citizens of their rights in order to make them happy: ‘The sovereign wants to make the people happy as he thinks best, and thus becomes a despot’ (VIII, 302, 10–11; cf. 305–6). According to Kant, the proper hierarchy is just the other way round: above all, the sovereign has to secure the rights of the citizens, who promote their own happiness the way they think fit. The patriotic government is based on juridical freedom, whereas the paternal government is despotic and founded on the principle of happiness, with the subjects being treated as ‘immature children’ (VIII, 290–1).⁵⁵

      From Kant’s perspective, another weakness of enlightened absolutism was the dependence of the political system upon one single person – the king – whose opinion was decisive. The king might grant or deny freedom of the press, depending on his personal preferences. There was almost no ‘constitutional restraint’ nor any system of ‘checks and balances’; the rights of the people were not guaranteed by a written constitution. This became clear in the notorious Miller-Arnold dispute. Kant commented not only on Frederick’s reforms, but also on the famous event that triggered their second phase. The miller Johannes Arnold was rejected by courts of the first and second level of jurisdiction, then appealed to the king (see above). Frederick launched a public relations campaign, intervening four times in the legal procedure, insulted the judges involved (‘Shut up, you scum’) and put them in jail, notably without court trials. Frederick’s PR campaign was successful. Commentators compared him with King Solomon, but later it turned out that Arnold’s protest was unfounded. As a result, Frederick resembled Don Quixote tilting at windmills rather than the wise Jewish king. Apparently he wanted to be seen as a fighter for the weak and oppressed, but in this case he fought on the wrong side. As Arnold’s complaint was completely unfounded, the judgement in the case was reversed after Frederick’s death.⁵⁶

      Ignoring the king’s propaganda, Kant criticized Frederick’s conduct with formal legal arguments. Frederick violated one of the key elements of the ‘spirit’ of republicanism, the separation of powers. The supreme power arbitrarily interfered with the activities of the courts. Kant wanted to see the episode as an exception to the rule (XIX, 607, 21–4). However, it suggests that Frederick’s autocracy was deficient, since it left room for arbitrary decisions. In Kant’s legal philosophy, a representative democracy is the ideal that accords with the spirit and letter of republicanism. An autocracy with the sovereign governing in a republican manner is merely a transitory stage. In Perpetual Peace, Kant gives us the impression that the ‘spirit’ of republicanism would do; in the Contest of Faculties, published three years later (1798), he is more outspoken. Only the republican constitution corresponds with the idea of justice, and as long as it has not been realized, it is ‘in the meantime … the duty of monarchs to govern in a republican … manner, even though they may rule autocratically’ (VII, 91, 12–14). The term vorläufig (for the time being) suggests that autocracy in a republican manner, including enlightened absolutism, is a mere transitory stage. The goal is the ‘pure’ and ‘true’ republic. This republic is identical with representative, constitutional democracy, where a people is ‘literally asked for its consent’, and those who obey the law also legislate (VII, 90–1; VI, 340–1; XXIII, 342, 27–9; around 1797). Using Pogge’s terminology, we can say that the state of enlightened absolutism (partly) realizes the consistency principle, namely that ‘rational persons ought to coexist under a system of constraints ensuring mutually consistent domains of external freedom’. However, only a republic carries out the consistency principle and the principle of universality. This system of constraints ‘ought to limit everyone’s external freedom equally – the constraints should be general and universal’.⁵⁷ Kant’s historical example of a people ‘literally asked for its consent’, stated explicitly in an unpublished note, is the French Directory, which ruled from October 1795 to November 1799. Kant contends that the French republic was superior to the British system. The Directory had to go to the council – which represented the people – СКАЧАТЬ