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2 • Kantian International Right: Background and Paradigm Shift

The eighteenth-century background

The 1990s saw an unprecedented boom of congresses, books and articles on Kant’s essay Zum ewigen Frieden (1795), his theory of international relations and doctrine of international right.¹ While this part of Kant’s philosophy was often ignored in the past, it has gained more attention of late. In addition, it is also often highly praised. Michael W. Doyle sees Kant as ‘one of the greatest of liberal philosophers’; Daniele Archibugi calls the peace essay ‘the most … significant work of juridical pacifism’; Fernando Tesón believes that Kant’s accomplishment in international relations theory is ‘magnificent’; and Howard Williams and Ken Booth agree with Chris Brown that Kant is ‘the greatest of all theorists of international relations’.²

This chapter provides some background information of Kant’s theory of international right and its unique position in eighteenth-century Enlightenment thought. I start with an outline of so-called ‘international relations’ in Europe during Kant’s lifetime. European international relations of the eighteenth century are usually subsumed under the misleading heading ‘Westphalian model’.³ The congresses of Münster and Osnabürck, the first European multilateral diplomatic gatherings, produced the Treaties of Westphalia in 1648, which ended the Thirty Years War. The treaties did away with imperial (Habsburg) hierarchy within the Empire and attempts at European hegemony, ended papal influence in politics, and tried to resolve the ‘religious issue’ (the denominational disputes between Catholics, Lutherans and Calvinists). The congresses were one important step in a long-term process where the traditional imperial vertical model was replaced by the modern horizontal interstate model. For the major powers, sovereignty meant the right to go to war whenever it seemed appropriate. Eventually, namely in the nineteenth century, the sovereign state as the prototype of international actor evolved, with central concepts such as territorial integrity and non-intervention at its core. Classical European international law of the eighteenth century, often called ius publicum europaeum, was different. It gradually abandoned the just-war theory of the Middle Ages and focused instead on an elaborate doctrine of the right to make war. Modern European war between states was bellum iustum ex utraque parte, ‘just’ – or rather legitimate – on both sides.⁴ This ius ad bellum was rooted in the principle of sovereignty. War was the ultima ratio regum, the last means of the kings to pursue their rights if they believed they had been violated. In practice, it was up to the king alone to decide if a violation had actually taken place.⁵ Still, there was some sort of order and some community interest: ‘The Peace of Westphalia failed to establish a comprehensive order, but it did include some elements of a hypothetical international order.’⁶ In Kantian terms, the European countries had left the state of nature, but failed to enter a full juridical condition. Several wars were fought against Louis XIV from the 1670s onwards to check his alleged ambitions for a ‘universal monarchy’ and to keep an evolving and precarious balance of power.⁷ The peace settlements of 1713–15 did not modify existing arrangements. War was not seen as an inherent evil or as an endemic problem of the European order. The settlements were ‘a victory for the principle of anarchy against hegemonical designs; they were not a victory for peace’.⁸ The peace treaty of Utrecht turned European balance of power into a principle of international law, or rather of the Droit public de l’Europe. The ‘universal society’ many writers referred to was still de facto a European society of Christians who had – to a certain degree – accepted religious tolerance among them as indispensable. Politicians referred to the balance-of-power doctrine to justify interventions and acquisitions such as the partitions of Poland in 1772, 1793 and 1794. Kant ridiculed this doctrine as ‘pure illusion’: it was too fragile to establish a lasting peace; it could not overcome the state of nature (VIII, 312, 29–33). On the other hand, Kant accepted that there was an entitlement to maintain a balance of power in the state of nature (VI, 346, 22–3). According to Kant, the absence of enforceable international right allows states to use military power and form alliances in order to secure their external freedom; however, this entitlement is only provisional. Kant’s position seems contradictory. It does make sense if we keep rights and entitlements, the state of nature and the juridical condition, apart.⁹

Eighteenth-century wars were rather limited, although sometimes wars of destruction were fought and attempts were made to make states disappear. In general, however, rulers did not want to risk their expensive professional armies, followed certain rituals and obeyed manners and politesse even in battle. Whereas going to war was usually not seen as a crime, acts in a war were subject to certain juridical norms. The international society was state-centred. As Vattel put it, the law of nations was ‘the science of the rights which exist between Nations or States, and of the obligations corresponding to these rights’.¹⁰ In theory, this implied some normative ideas: that states were moral persons and had the same basic rights, that obligations were reciprocal, and so on. Violations of these principles did occur, the partitions of Poland probably being the most prominent example. The concept of equality among states was to a large extent based on fiction.¹¹ Finally, it must be kept in mind that for several reasons the shorthand ‘Westphalian world order’ is quite misleading. The centrality of the peace of Westphalia has to be challenged. Even before the treaty, many European states had in fact and de jure been sovereign. After Westphalia, some non-state actors did remain (partly) sovereign, or state sovereignty as a principle was ignored. All things considered, the peace treaties of Westphalia were a benchmark and key texts for inter-state relations up to Kant’s time.¹²

By the time of Kant, the subjects of European international relations were territorial states that had profoundly changed since the Peace of Westphalia, and that continued to do so. Princes established a political system labelled absolutism and later ‘enlightened absolutism’: they restricted the influence of the estates and the churches and built up standing armies and the bureaucracy. Their states were usually economically independent units (see chapter 1 on Prussia as a case in point).

In the course of the eighteenth century, many international lawyers turned away from natural rights theories towards positive international law. They also moved beyond the traditional focus on the ‘just war’. The question of the justice of the cause was progressively neglected, and war was seen as a political conflict. Lawyers emphasized rules that limited the conduct of war, specified diplomatic rituals, protected civilians and gave rights to neutral parties. Carl Schmitt called this Hegung of the war (diminution and mitigation; if you put war into a Gehege, then you look after it and try to reduce its dangers).¹³ Warfare changed profoundly only during the French Revolution, due to the formation of a citizens’ army, economic mobilization, tactical innovations and a new ideology.¹⁴ Meanwhile, the European state system remained the same, with allies finally fighting the aggressor Napoleon to prevent a ‘universal monarchy’.

Rulers, their advisers and most lawyers were not really creative in overcoming this semi-anarchical arrangement. Coalitions like the one against Louis XIV (1701–14) were formed not in order to create a system of collective security but out of necessity. These coalitions quickly fell apart, sometimes even before the end of the war: ‘War was regarded as a fact of life and as a useful instrument of diplomacy, not as a problem.’¹⁵ Systemic and long-range insights into the nature of an anarchical system came from philosophers and some jurists writing about ‘the law of nature and nations’ (they came to be called ‘international lawyers’ in the nineteenth century).

Apart from Grotius, Emer de Vattel (1714–67) was the most widely read and influential international lawyer towards the end of the eighteenth century, especially in England and the United States. Drawing upon Leibniz and Wolff, Vattel postulated a ‘universal society of the human race’ as an ‘institution of nature itself, that is, a necessary result of man’s nature’.¹⁶ He favoured popular sovereignty and replaced the sovereignty of the prince with the sovereignty of the state and its moral personality: ‘The State is not, and can not be, a patrimony.’ ‘Such a society has its own affairs and interests; it deliberates and takes resolutions in common, and it thus becomes a moral person’¹⁷ – these and other specifications have clearly influenced Kant. Vattel’s international society was pluralist in nature. Order must be kept and state independence respected. In contrast to Grotius, and in accordance with most eighteenth-century state practice, Vattel advocated a humanized law of war. Wars should be mitigated, unarmed subjects should be protected, because wars are a relation between sovereign states, not their subjects.¹⁸ Vattel’s central dilemma, however, remained unsolved: what takes precedence, the rule of law or state sovereignty? Rejecting Wolff’s idea of a great republic (civitas maxima),¹⁹ Vattel settled for absolute state independence. His law of nations was almost without any sanctions; the distinction between just and unjust wars was delegated to the sphere of morality; only the unjust enemy could be forced (see also chapter 7 on the ‘unjust enemy’). Vattel, who seldom moved away from the political realities of his age, should be seen as the typical representative of mainstream European international law, with states as the principal actors, an emphasis on state sovereignty, and clear distinctions between law and morality, international and state law, and perfect and imperfect duties.²⁰

Although Vattel partly prepared the ground for positivism in international law, he himself was rooted in the natural right tradition. Richard Zouch, Samuel Rachel, Cornelius van Bynkershoek and Johann Jakob Moser are usually assigned to the positivist camp, even though they kept many natural right elements.²¹ Most international lawyers rejected Hobbes as too extreme. Hobbes had claimed that natural right justified the validity and legitimacy of positive state or civil law: Lex naturalis omnes leges civiles iubet observari.²² Laws are valid in a state or commonwealth where the sovereign can enforce them. Their inherent moral or rational features are irrelevant: Auctoritas, non veritas facit legem.²³ If laws cannot be enforced, they are useless, they belong to the ius inutile. According to Hobbes, the law of nations was a case in point.

Few eighteenth-century authors were willing to follow Hobbes. Samuel Pufendorf (1632–94) agreed that international law was part of natural right. He also accepted that states live in a condition of nature, another central Hobbesian thesis.²⁴ Parallels soon end. For Pufendorf, this condition of nature was one of peace; there was some sort of rightful order among states. Christian Wolff (1679–1754) thought that this order was rooted in the civitas maxima, a hypothetical community of states, a society of nations based on their free tacit consent, but endowed with binding laws that could not be revoked.²⁵ Wolff distinguished among four types of international right, ius gentium naturale, voluntary international law, one based on contracts and customary law.

If Wolff was a highly original international lawyer with an idealistic touch, he was surpassed by intellectuals, philosophers and writers without professional legal training. The middle of the eighteenth century experienced a boom in peace projects. The two most prominent authors were Charles Irénée, Abbé de Saint-Pierre, and Jean-Jacques Rousseau. Saint-Pierre advocated an international organization in his Projet pour rendre la paix perpétuelle en Europe (1713).²⁶ The task of this organization was to guarantee security for each member. This would in turn change the mode of interaction among them. Problems would be solved by an international court of justice, not by war. All states would accept the status quo and promise not to try to change property rights. War could only be waged against a state that had been declared an enemy of the organization. With this sole exception, states were supposed to refrain from the use of force. Saint-Pierre realized that the structure of international relations had to be modified if the Hobbesian state of war and anarchy should be overcome. The federation was designed to enable states to replace one mode of interaction (namely war) by another set (namely majority vote and the rule of law).

Rousseau evaluated Saint-Pierre’s project twice, in the Extrait (1756/1761) and in the Jugement sur la Paix Perpétuelle (1756/1782).²⁷ Like Saint-Pierre, he described the eighteenth-century European international system as a system of anarchy that lured countries into wars they sometimes did not want to wage, but that they thought they had to because of neighbours they perceived as enemies. For Rousseau, diplomacy was a tool of tyrannical rulers; war was one of its consequences. Similarly, trade among nations favoured dependence, inequality and thus conflict.²⁸ Like Saint-Pierre, Rousseau advocated a permanent congress of deputies as the main instrument of an international organization. Going beyond Saint-Pierre, Rousseau’s Jugement was revolutionary. He attacked the European princes and their cabinets as the main causes of war. Princes were described as ruthless usurpers who wanted to expand their absolute rule at home and used wars to make themselves indispensable. In Europe, Rousseau saw ‘unfortunate nations groaning under yokes of iron, the human race crushed by a handful of oppressors’.²⁹

Interpreters do not agree whether Rousseau saw a European international society as a desirable goal. According to one interpretation, his focus on the nation, his endorsement of patriotism and rejection of cosmopolitanism and the société générale demonstrate that he wanted to end international society: ‘Rousseau turns what Grotians and Kantians view as positive and desirable into a source of evil.’³⁰ Others see Rousseau as a pacifist republican who offered a convincing outline of an international organization. According to this interpretation, he aimed at establishing some sort of ‘peaceful coexistence’ among economically independent, small republics. The states involved would share some common juridical principles and would thus be rather homogeneous.³¹ It is obvious that Rousseau developed different concepts in various writings; this may explain some of the divergent interpretations.

As far as we know, Kant had always cherished, admired and respected Saint-Pierre’s and Rousseau’s writings.³² Early references to Saint-Pierre go back to the period between 1752 and 1756 (XVI, 241). From 1760 onwards, Plato, Saint-Pierre and Rousseau were described as enthusiastic idealists who follow ideas that are true in themselves (XV, 210). In ‘Idea for a universal history’ (1784), Kant defended the concept of an international federation:

However wild and fanciful this idea may appear – and it has been ridiculed as such when put forward by the Abbé St Pierre and Rousseau (perhaps because they thought that its realization was so imminent) – it is nonetheless the inevitable outcome of the distress in which men involve one another. (VIII, 24, 28–33)

Saint-Pierre and Rousseau were ahead of their times. What they found out with the help of reason, ordinary humans learn by experience. Distress (Not could also be translated as ‘hardship’ or ‘adversity’) teaches us to renounce our ‘brutish freedom’ (VIII, 24, 34) and abandon the state of nature. The word ‘inevitable’ is highly problematical in the above quotation; it cannot easily be reconciled with Kantian criticism (see chapter 3 for more).

Kant admires Saint-Pierre and Rousseau, but he does not follow them blindly. Like Rousseau and unlike Saint-Pierre, Kant emphasizes the importance of domestic policy for international relations. Unlike Rousseau, Kant believes that absolutism is capable of reforming itself towards republicanism. Both Saint-Pierre and Rousseau favoured an international federation with coercive authority; Kant’s approach is different (see chapter 8). Saint-Pierre and Rousseau used the past to justify their projects. They referred to Henri IV, Sully and the Holy Roman Empire. Kant, on the other hand, is the philosopher of pure reason. Reason, not history tells us what we should do: ‘reason, as the highest legislative moral power, absolutely condemns war as a test of rights and sets up peace as an immediate duty’ (VIII, 356, 2–4). All three thinkers defend idealism in ethics and rights: the primacy of normative ideals over facts and figures. In addition, Kant sees his peace concept as part of a system of rights. He provides basic juridical principles, leaves out utilitarian considerations and tries to present a coherent system. Kant goes beyond international legal theories of Vattel’s type. It has been claimed that Vattel lacks a legal philosophy.³³ Kant offers a complex and convincing one. Vattel stays too close to eighteenth-century political realities. Kant develops ideas to transform existing conditions.

An outline of Kant’s doctrine of international right

Kant’s doctrine of international right is part of his doctrine of rights, which is in turn part of the metaphysics of morals; the most comprehensive account of this doctrine of international right is found in The Metaphysics of Morals. Kant’s principle of justice forms its basis, and it is a special version of the categorical imperative.³⁴ ‘Right is … the sum total of those conditions within which the will of one person can be reconciled with the will of another in accordance with a universal law of freedom’ (VI, 230, 24–6). One’s use of external freedom may violate the freedom of others. In this case, the use of coercion is justified to remove this ‘hindrance to freedom’. Therefore ‘right entails the authority to apply coercion’ (VI, 231, 30–4). From this, Pogge’s consistency principle follows: ‘rational persons ought to coexist under a system of constraints ensuring mutually consistent domains of external freedom’.³⁵ A full juridical condition guarantees this. The universality principle is subordinate to the first one. It claims that the system of constraints ‘ought to limit everyone’s external freedom equally – the constraints should be general and universal’.

The universal principle of justice or rights is specified in the six preliminary and three definitive articles. Kant’s ‘philosophical sketch’ (VIII, 341) has the function ‘to constitute the rules and the basis of legitimation for internal and external State activity’.³⁶

The preliminary articles specify what states should not do if they want to set up the conditions for a true peace treaty among them. These articles do not exclude war; it may still be necessary for a state to defend its independence or territory by military means.³⁷ The preliminary treaty excludes actions that would make a peace treaty impossible and which contradict the idea of a peaceful society of nations. The preliminary articles offer six requirements.³⁸

1. A conditional peace treaty and ‘secret reservations’ are forbidden (VIII, 343, 20–1). All parties agree mutually and unconditionally to recognize the status quo.

2. States identify each other as ‘moral personalities’ (VIII, 344, 22) with full external and internal sovereignty.

3. States are willing to reduce the readiness for war, stop the arms race and gradually abolish ‘standing armies’ (VIII, 345, 1).

4. National debt ‘in connection with the external affairs of the state’ (VIII, 345, 20–1) should be avoided. This provision is supposed to reduce the readiness for war.

5. If states are sovereign moral personalities (see article no. 2), then military intervention must be forbidden.

6. As wars can still be fought, they should be conducted in such a way that any future peace treaty is not made impossible.

Systematically speaking, each state has three perfect duties towards oneself and others, according to the Ulpian formula honeste vivere, neminem laedere and suum cuique (VI, 236–7).³⁹ In international relations, the first axiom means that a state must not be commanded or disposed of by others (VIII, 344, 19), is not allowed to use itself as a mere means or dissolve itself as a moral personality, and should refrain from hostilities during war that would make mutual trust impossible (VIII, 346, 23–5). If there is a duty to sustain oneself as a moral personality, then this implies the duty not to destroy oneself as a physical entity, since the moral, noumenal entity is in need of, and actualized by, a physical one (VI, 422, 31–423, 6). Both the second and the third principle refer to others; Kant admits that there is no difference between the two in terms of content (XXVII, 1, 144, 14–15). They can be distinguished if we assume that the second refers to the state of nature, whereas the third postulates to leave it. Neminem laedere asks moral persons not to injure others, or violate their natural rights (VI, 236, 31–2). In terms of international right, it prohibits war and intervention for reasons of principle.⁴⁰ The third principle asks individuals or states to leave the state of nature and enter a civil condition (Rechtszustand; VI, 237, 1–8; XXVII, 2, 1, 528, 12–15). In the state of nature, provisional property rights do exist, and this state must be left to secure them, and turn them into peremptory rights (VI, 256).⁴¹ The state of nature is, above all, characterized by a certain mode of resolving disputes, namely by private force. One’s own perceived rights and personal judgement is defended with one’s own sword.⁴² This mode is changed in a juridical condition: modus ius suum persequendi in republica est per actiones non per vim privatum (XIX, refl. 7693).

Kant distinguishes between an active injury (laesio), or violation of a right (VI, 249, 1–3) in a juridical condition and an injury per statum (XIX, refl. 7647). In the state of nature, individuals (or countries) injure each other by this very state in which they coexist, by its ‘very lawlessness’ (Gesetzlosigkeit; VIII, 349, 19), characterized by permanent threats to each other. Anyone is entitled to see neighbours as enemies. Consequently, the state of nature is a state of war, even if there might be a period of tranquillity. As space on earth is limited and often densely populated, humans cannot avoid getting into contact with and influencing each other.⁴³ As a consequence, a state of public right should be instituted. The three definitive articles are based on the postulate that ‘all humans who can at all influence one another must adhere to some kind of civil constitution’ (VIII, 349, 23–4).

The definitive articles institute this juridical condition on three levels: domestic, international and cosmopolitan. These layers are termed civil right, international right (right of nations), and cosmopolitan right. Kant’s classification is indeed logically ‘necessary’ (VIII, 349, 34) and follows from his system of rights. Kant’s reasoning includes only one non-juridical, empirical element. He refers to the earth’s shape and human interaction. ‘Since the earth is a globe’, the third definitive article runs, people ‘cannot disperse over an infinite area’ (VIII, 358, 10–11). This minimalist assumption is plausible, not controversial and does not carry the weight of the argument.⁴⁴

Some interpreters have spotted a tension between the preliminary and the definitive articles. A reading of the first ‘leads to a realist or statist interpretation that gives primacy to states and governments over individuals’, whereas the definitive articles, above all the third, emphasize the priority of human rights.⁴⁵ Like similar tensions in Kant’s writings, we can solve this fundamental one by arguing that Kant’s sketch is evolutionary. The preliminary articles are norms for a semi-juridical condition, a condition after the state of nature has been left, but a juridical condition has not yet been fully achieved. Kant is a realist in the sense that he offers a step-by-step-model of how to go beyond the state of nature. He is an idealist because he is not satisfied with the first step(s).

Does Kant expect people to overcome wars and, if he does, what would the future state of affairs be like? Would there be complete harmony, no conflict of interest? Realists will argue that this cannot be achieved, and social Darwinists might add that this goal is not desirable. Humankind would rot to pieces. Kant distinguishes between antagonism and contest on the one hand and war on the other. Contest is the conflict of two or more parties who share a common final end or goal (Endzweck). In case of war, the final ends are opposed to each other (VII, 35, 29–32). Kant envisions a global community where conflicts do not simply disappear, but people have reached a consensus that these conflicts should not be resolved by war. They would share a common final end, namely the rule of law.

The aim of this last section is to demonstrate that a paradigm shift takes place in three areas of Kant’s doctrine of international right. First, it moves from the traditional focus on the right of war (ius belli) to the right directed towards peace (ius pacis). Second, Kant borrows the concept of state sovereignty from international law but reinterprets it as popular sovereignty. Finally, Kant undermines the idea of classical law of nations as almost exclusively centred on states with cosmopolitan right.

Beyond the just-war theory

In the eighteenth century, international law was seen as a system of interactions among sovereign states which did not see each other as criminals but as justi hostes, as potential enemies who (theoretically) shared equal rights.⁴⁶ Balthazar de Ayala (1548–84) had used iustum in the sense of ‘lawful’ or ‘legal’, pointing out that only the sovereign had the right to wage war.⁴⁷ By the eighteenth century, war was seen as a duel, as guerre en forme or ‘regular war’,⁴⁸ which had to fulfil certain formal criteria such as a declaration of war. The question of whether this war was in itself just or not was less important, or even had to be left out:

Thus the rights founded upon the state of war, the legal nature of its effects, the validity of the acquisitions made in it, do not depend, externally and in the sight of men, upon the justice of the cause, but upon the legality of the means as such, that is to say, upon the presence of the elements constituting a regular war.⁴⁹

This eighteenth-century understanding is fundamentally different from our present perception. Since the First World War, international law has undergone a profound change.⁵⁰ Modern international law has gradually banned war and the use of force in international relations – at least in theory. The first important document was the Kellogg–Briand Pact of 1928, followed by the Charter of the United Nations of 1945 (article 2, 4). International law has absorbed Kant’s categorical imperative to avoid war and promote peace. This imperative is expressed most clearly in an impressive passage in the Metaphysics of Morals:

[M]oral-practical reason within us pronounces the following irresistible veto: There shall be no war, either between individual human beings in the state of nature, or between separate states … For war is not the way in which anyone should pursue one’s rights. (VI, 354)

This veto is ‘irresistible’, or unwiderstehlich, which means that it does not allow for exceptions. The last sentence in the quotation points out Kant’s philosophical argument: war is the opposite of justice and a just, legal procedure or trial, and thus incapable of obtaining one’s rights. Kant replaces the paradigm of (a formally conducted) war by the paradigm of peace: ‘What is at stake for Kant, is not the elimination of a natural disposition in man to quarrel, but the elimination of possible juridical grounds for it.’⁵¹ This is a paradigm shift and can be explained with the help of Hobbes’s formula exeundum e statu naturali. Kant starts with a factual description: states exist ‘in their external relationships with one another … in a condition devoid of right’ (nicht- rechtlichen Zustande; VI, 344, 6–10; VIII, 354–5; VI, 312) and full of (possible) war.⁵² This seems to be a truism and a banality. In fact, however, it points at the difference between Kant and most of his contemporaries. They tended to question Hobbes’s description of the law of nations as ius inutile and his denial of any binding norms as too extreme or pessimistic. Vattel, for instance, refers to Hobbes’s ‘detestable principles’.⁵³ Kant is completely Hobbesian in his analysis of the status quo. In contrast to Hobbes, however, Kant postulates a juridical duty to leave this state of nature in the sphere of international relations as well (VI, 344, 13–14; VI, 350, 6–8; VIII, 354, 3–8).

Kant’s philosophical predecessors in international right had a different perspective. For them, limiting wars and subjecting them to norms of conduct was crucial. This is an honourable enterprise; however, this kind of thinking might be too close to reality. Kant tries to save the dimension of ideals and anticipation in international right. Kant’s theory might be called anticipatory as it refers to something which is possible or can be realized (it does not touch upon a strict utopia or ‘nowhere’). This thinking is fully aware of the problems posed by reality, for instance the fact of state anarchy.⁵⁴ Kant combines the classical right of nations (set out by Vattel and others) with the normative ideals of peace concepts (developed in particular by Saint-Pierre and Rousseau).

Interpreters still disagree on whether Kant’s transition from a condition of war to a juridical condition is convincing (see chapter 8). In this context, I want to emphasize one aspect, the difference between the domestic and the international level. Kant claims that in international relations, no country is entitled to end the state of nature by means of force. Kant has accepted this permissive right among individuals who enjoy their lawless freedom (VI, 256, 14–18). Perpetual peace is ‘the ultimate end of all international right’ (VI, 350, 16–17), the ‘supreme political good’ (VI, 355, 30). Still, no state is entitled to force others into a condition that might realize this highest or supreme good. Kant abandons the just-war theory. A just war, Kant contends, is a contradictio in adjecto, because it tries to determine what is lawful by means that are not lawful, namely ‘one-sided maxims backed up by physical force’ (VIII, 356–7).⁵⁵ In a full juridical condition, legislation, jurisdiction and executive are never concentrated in one person or state, and the means applied reflect the underlying legal principles.

It might be argued that Kant’s accounts of the right to go to war and of the unjust enemy contradict my thesis of a new paradigm. Does Kant not relapse behind his own (allegedly pacifist) theory with the claim that states do have a right to go to war? A full analysis of these doctrines can be found in the respective chapters of this book (see chapters 6