Global Justice, Kant and the Responsibility to Protect: A Provisional Duty by Heather Roff

Author:Heather Roff [Roff, Heather]
Language: eng
Format: epub
Tags: International Relations, Military, Peace, Political Science, History, General
ISBN: 9780415660815
Google: rw-KMAEACAAJ
Goodreads: 15859354
Publisher: Routledge
Published: 2013-01-15T09:37:36+00:00

Objections

Some might object that my characterization of the international system as being in an SME is exaggerated, and so the permissive law does not apply. The critic might argue that the international system is actually further along the juridical path than in Kant's time, and that such progress puts us closer to, not further from, a condition of international public right. This forward movement, therefore, makes a supreme moral emergency a distant possibility and not an immediate concern. Indeed, she might concede that idea that the international system is still a statu naturali, but this bleak Hobbesian picture is losing accuracy because the society of states is governed by international law, adjudicated by international courts and tribunals, and executed, in a sense, by the United Nations.

At first blush these observations all hold true, even though these “juridical” mechanisms are not properly juridical in Kant's sense. But more importantly, the opposite is true. States actually seem to subvert the “progress” they claim to have made, as they perpetually refuse to give up a certain degree of sovereignty and establish a transnational institution with universally coercive capabilities. Thus, while the current international system is a society “compatible with rights,” it is still not a rightful society, and attempts at forming and implementing international institutions have done little to regulate state behavior and protect basic human rights.69 The international system might be “governed” by international “law” (treaty and customary), and it may have transnational courts to adjudicate disputes between states or persons, but it does not “secure against violence” the rights of “human beings, peoples, and states.”70

Kant's notion of public right is “the sum of the laws which need to be promulgated generally in order to bring about a rightful condition.” In other words, it is a “system of laws for a people, that is a multitude of human beings, or for a multitude of peoples, which because they affect one another, need a rightful condition under a will uniting them.”71 What this ultimately means is that established and promulgated laws must be general in form (i.e., applicable to all people) and they must be backed by a “public lawful external” coercive mechanism (i.e., enforcement of the laws must not depend upon any one individual's strength). The question “What makes right?” then, is not so simply answered as “those rules set up by a legislator (or legislature).” For Kant, right requires the legislative authority, but that authority must be “public” in the sense that “the people” authorize it to make laws (either through appointed or elected officials or through direct voting).

However, the legislative authority is not the only requirement for public right. There must also be separated executive and judicial authorities. Kant claims that:

These [authorities] are like the three propositions in a practical syllogism: the major premise, which contains the law of that will; the minor premise, which contains the command to behave in accordance with the law, that is the principle of subsumption under the law; and the conclusion, which contains the verdict (sentence), what is laid down as right in the case at hand.

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