Kant and the Theory and Practice of International Right by Georg Cavallar;

Author:Georg Cavallar;
Language: eng
Format: epub
Publisher: Book Network Int'l Limited trading as NBN International (NBNi)

In the case of the unjust enemy, it is the majority that judges and executes at the same time. Is this judgement arbitrary? Are the maxims of the allied forces, as paragraph 60 implies, universal (allgemeingültig)? It seems odd that Kantian theory, focusing on a priori standards of justice, allows for majority decisions. However, we should consider the following points: a war between two states may not be called just on either side, yet a war between a community of states and an outsider state is a different matter. Even the allies are obliged to conform with the a priori laws of natural right; they are only entitled to apply these laws. Their judgement is not ‘universal’, but may be called intersubjective. There is no doubt that the transitional state is deficient; there is no genuine rule of law.

The ‘unjust enemy’ should be understood as a spoiler of this transitional, semi-juridical condition, where international law gradually develops towards a full juridical condition. This is also the positive function of the ‘unjust enemy’ within the evolutionary process of international law. It points at the weakness of Kant’s free federation of states, which does not manage to abandon the state of nature completely and cannot solve the problem of law enforcement (see chapter 8). In ideal circumstances, the unjust enemy might even turn into a catalyst of legal progress.23

In the transitional condition, state sovereignty is no longer absolute in the sense that each state decides arbitrarily if and for how long it wants to follow the natural rights and fundamental principles of the international society of states. Sovereignty has become relative, because there is a hierarchical relationship between these fundamental norms and the states.24 The majority of states have accepted this relative sovereignty, and they impose their will upon the unjust enemy who does not accept it. Horizontal law enforcement compensates for a coercive world republic. An analysis of paragraph 60 of the Rechtslehre thus leads us to modified concepts of sovereignty and the state of nature. Kant’s theory would still remain Kantian, but probably less Hobbesian.

On the use and abuse of Kant in international relations theory: a critique of Susan Meld Shell

Kant’s account of the right to go to war and the issue of the ‘unjust enemy’ are not merely of academic interest. Liberals as well as conservatives have used Kant’s reasoning to justify wars as well as interventions, for instance in so-called ‘rogue states’. A case in point is the intervention of the Bush-administration in Iraq in 2003. Some Kant interpreters have constructed a difference between the ‘pacifist’ and ‘idealistic’ essay on perpetual peace (1795) and an allegedly ‘realistic’ and ‘bellicose’ Doctrine of Law (1797), which supposedly justifies preventive wars, preemptive strikes, colonialism, and unilateral action in case of a perceived threat.25

An interesting example is American philosopher Susan Meld Shell, who apparently attempted to defend the so-called Bush Doctrine and its two key elements, unilateralism and preemptive strikes with the help of Kant’s texts. In her essay, Shell wants to

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