Article I. – “No conclusion of Peace shall be held to be valid as such, when it has been made with the secret reservation of the material for a future War” – by Gregg Lambert
Article II. — “No State having an existence by itself – whether it be small or large – shall be acquirable by another State through inheritance, exchange, purchase or donation” – by Patrick Hanafin
Article III. — “Standing Armies shall be entirely abolished in the course of time” – by Louis Kriesberg
Article IV. – “No National Debts shall be contracted in connection with the external affairs of the State” – by Adam Gearey
Article V. – “No state shall intermeddle by force with the Constitution or Government of another State” – by Paul Patton
Article VI. – “No State at war with another shall adopt such modes of hostility as would necessarily render mutual confidence impossible in a future Peace; such as, the employment of Assassins (percussores) or Poisoners (venefici), the violation of a Capitulation, the instigation of Treason and such like” – by William C. Banks
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Article I – “No conclusion of Peace shall be held to be valid as such, when it has been made with the secret reservation of the material for a future War”
For then it would be a mere truce, a mere suspension of hostilities, not peace. A peace specifies the end of all hostilities and to attach to it the epithet (eternal is not only a verbal pleonasm, but matter of suspicion. The causes of a future war existing, although perhaps not yet known to the high contracting parties themselves, are entirely annihilated by the conclusion of peace, however acutely they may be ferreted out of documents in the public archives. There may be a mental reservation of old claims to be thought out at a future time, which are, none of them, mentioned at this stage, because both parties are too much exhausted to continue the war, while the evil intention remains of using the first favorable opportunity for further hostilities. Diplomacy of this kind only Jesuitical casuistry can justify: it is beneath the dignity of a ruler, just as acquiescence in such processes of reasoning is beneath the dignity of his minister, if one judges the facts as they really are. *If, however, according to present enlightened ideas of political wisdom, the true glory of a state lies in the uninterrupted development of its power by every possible means, this judgment must certainly strike one as scholastic and pedantic.
The preliminary articles should be understood as outlining the a priori conditions for a sustainable or lasting peace. There are six articles, three of which are prohibitive in their strict formulation, stipulating legal sanctions that can be applied immediately to current circumstances:
- Article 1. The outlawing of secret clauses in legal instruments of peace (i.e., duplicitous treaties);
- Article 5. The prohibition against meddling or interference with the political constitution of another state;
- Article 6. The outlawing of the use of certain illegal means of warfare, such as assassins or poisoners, creating hostility and resentment that can be passed down to generations as an obstacle to future peace.
The remaining three articles are understood as being permissive or provisional, given the impossibility of being realized in the context of current political practices and principles international law:
- Article 2. The prohibition of acquiring states by inheritance, purchase, or donation (including current colonial practices);
- Article 3. The abolishment of standing armies;
- Article 4. The prohibition of national debt as a financial instrument for waging war.
It is in Toward Perpetual Peace that Kant first presents a division between preemptory and conclusive (peremptorisch) right and provisional (provisorisch) right, which violates the strictest moral principle of right, but is permissible only because it is impossible to enforce by positive laws and current political institutions, or because, although morally objectionable, its provisional acceptance holds open the possibility of progress and prevents something worse (which, for Kant, would be a return to barbarism and the abdication of any rule of law). This distinction is further developed two years later in the Rechtslehre, and as Elizabeth Ellis has argued, has been a major source of controversy and misunderstanding concerning Kant’s politics.[i] For example, as he says throughout Toward Perpetual Peace, the “right of war” (jus belli) is certainly morally objectionable, and yet, because it remains the founding principle of national right at this historical moment, it will legally be permitted to continue as long as the principles of international law are not strong enough to prohibit it as a political practice between nations. As Kant writes in the second definitive article, moreover, “the notion of a Right to go to war cannot be properly conceived as an element in the Right of Nations. […] If such a Right be conceivable at all it would amount, in fact, to this: that in the case of men who are so disposed it is quite right for them to destroy and devour each other, and thus to find Perpetual Peace only in the wide grave” (61). Certainly, this understanding of a provisional acceptance war as a current element of the principle of national right is very different from a laissez faire spirit of “everything is permitted” that has often been ascribed to Kant’s political theory.
Returning to explicate the first article, which outlines a practice that can be immediately prohibited by a strict conception of right (leges strictae), “no treaty of peace shall be regarded as valid, if made with the secret reservation of material for a future war.” A peace treaty (Freidensvertrag, pactum pacis) is regarded merely as a provisional instrument, or a contract between two or more parties, for ending current hostilities.
Parties may enter into a contract with certain moral or practical reservations that they choose to hold in secret, first of all, because the nature of a contract is that it is always provisional and temporary, subject to changing circumstances outside the control and knowledge of the original framers, but more importantly, because no contract can become binding for all eternity without itself becoming a source of injustice for future peoples who were not party to the original agreement, as has often happened. Nevertheless, as Kant writes elsewhere, all legal treaties are endowed with an air of being sacred scripture, and it is the peculiarity of this instrument that protects it—and the participants—from falling into a state of blatant hypocrisy. Throughout the arguments of Perpetual Peace, Kant often makes a distinction between the provisional state of peace occasioned by a treaty, and a more permanent state of peace (as something approximating “eternal peace” on this earth and among human agents) that could only be brought about by the creation of a federation of free states, or by a “League of Peace” (feodus pacificum).
However, practical or moral reservations aside, no treaty can be regarded as legally valid (gelten) in cases where one or more parties willingly and consciously enter into a sacred oath for peace all the while reserving the material (Stoffe) for future war. Here, the argument is based on the first principle of contract law; no contract can be held as valid (i.e., legal) if its very terms are self-contradictory so as to cancel each other out. There is also a logical, practical, and moral argument as well: logically speaking, a treaty that reserves the material for war is merely a truce; practically speaking, the treaty itself would be classified as material, since its secret reservation would be used as the very cause for resuming the war; finally, morally, the “practical politicians “who craft such a duplicitous and publically misleading device are accused in the gloss on the article of “Jesuitical casuistry,” and of acting beneath the dignity of their public offices. This will be the clausula salvatoria (“saving clause”) that will come before the court of public opinion, which is the crucial point of Kant’s entire argument, as I will return to discuss with regard to the secret article that is appended to Kant’s own treaty.
Nevertheless, immediately following this moral argument, there is the clause, “if one judges the facts as they really are,” and here Kant is implicitly referring to actual persons of the State and historical treaties, even though the reference is oblique because Kant was already placed under an imperial ban of censorship for his previous writings on religion a year earlier. In fact, the clause refers to the historical sovereigns of Fredrick the Great (1740-1786) and his successor Fredrick Wilhelm II (1786-1797), as well as to an actual incident where, after invading Silesia, Fredrick II engaged a certain “duplicitous minister” who crafted a treaty that he later praised for his duplicitousness as “the work of an excellent charlatan.”[ii] The treaty in question is Treaty of Aix-la-Chapelle (1748), which concludes the Austrian War of Succession with a status quo ante bellum, that is to say, the restoration of pre-war territories and the recognition of Prussia’s conquest of Silesia. It becomes the object of scorn by the French, in particular, and is referred to in popular sayings as the Bête comme la paix and La guerre pour le roi de Prusse, a resentment that became one of the motives for the conquests of Napoleonic Wars. Kant himself likely had this treaty in mind when he referred to treaties that reserve material for future war, as well as to “Jesuit casuistry” of those warmongering despots and rogues who, “with indifference leave the justification of the war, for the sake of propriety, to the diplomatic corps, which is always ready to provide it” (57). Perhaps the most severe condemnation comes later on in Perpetual Peace in his version of the famous fiat justitia et pereat mundus against the perpetrators of “radical evil”: “Let righteousness prevail though all the rogues (Schelme) in the world should perish for it” (57).[iii]
The Conspiracy of Peace Enacted by the Secret Article
A year before publishing the second edition of Perpetual Peace, which contains the appendix of the secret article, Kant receives a “sovereign sentence” (Machtspruche) from Fredrick Wilhelm II reprimanding him for his “abstinence” and commanding Kant to submit to “our sovereign will.”[iv] (Moreover, in “The End of All Things,” also published that year, the earlier figure of Fredrick II appears as the figure of the Anti-Christ.) The secret article, contained in the second supplement, is detached from the main body of the first section of the treatise that outlines the preliminary and definitive articles, and offered as a secret pact. It reads: “The maxims of the philosophers regarding the conditions of the possibility of a public peace shall be taken into consideration by the States that are armed for war (116).”
The reason for this secret article is that it may not be compatible with the dignity of certain Persons to publicly acknowledge the origins of the idea of perpetual peace. The Person that Kant is referring to is not himself, since the philosopher is merely a “theoretical politician” who is nowhere capable of dictating anything into law. The Person of the Statesmen, the “practical politician,” is the subject in question; however, as we noted above, he holds the idea of peace with such contempt that he would never claim to be associated with its ideal (which, we remember from the prologue, are “only fit for the academy”), much less take responsibility for it as a nation that actually originated from his own Person.
In a climate of outright scorn and mockery, one in which the mention of the idea of perpetual peace would not be entertained in the public courts of power, Kant’s secret article creates the conditions for the idea to be considered only silently (i.e., privately). This allows for a compromise formation and creates the conditions of a conspiracy between philosophers and statesmen from the 18th century onward. “Making a secret of the matter” in closed sessions and the adjacent rooms of power, statesmen can take the idea seriously because it will never be publicly associated with them. The strategic purpose of the secret article relating to perpetual peace, therefore, is to allow statesmen to disassociate themselves from an idea that in fact originates with them. This is the final irony performed by Kant’s treatise, and points to the fact that the idea of perpetual peace originates with the Person of the State. It only becomes associated with the Person of the Philosopher in the current situation where the statesman “cannot be publically announced as originating with him.” Kant’s solution to this situation is to allow this final irony to persist, to create a compromise formation in which the statesman will be allowed to entertain the idea in secret as long as it continues to be publicly ascribed to the philosopher, who will suffer public derision and mockery by the politicians themselves.
The secret article in Kant’s essay thus enables the idea of perpetual peace to persist in public political discourse under the condition that the statesman may disavow it. Peace is, after all, a purely practical idea for Kant, one that must be disguised as theoretical and speculative and assigned to the philosopher, in part due to the statesman’s limitations for realizing this idea in human affairs. The philosopher thus functions simply as a historical surrogate whose purpose is to preserve the idea of perpetual peace under the “false” representation of its impossibility. As Kant writes in the conclusion of the Rechtslehre published two years after Perpetual Peace: “If one cannot that a thing is, he may try to prove that it is not. And if he succeeds in doing neither (as is often the case), he may still ask whether it is in his interest to accept one alternative over the over hypothetically, from the theoretical or practical point of view” (X). As in his earlier response to Mendelssohn, Kant chooses the more positive hypothesis, not because it can be proven—much less disproven either!—but because to choose the other alternative would amount to condemning humanity to a permanent state of war.
Therefore, perhaps the institutionalized partition between the two faculties of the philosopher and statesman is itself a false distinction, and the result of a secret conspiracy between the two faculties. Nevertheless, this compromise guarantees that the idea of perpetual peace will continue to exist, even though the true origin of the idea will remain a secret that is closely guarded by the philosophers who continue to publicly profess it, and by the politicians who continue to proclaim it an impossible ideal. As Kant writes at the end of the secret article, “That ‘kings will philosophize or philosophers become kings’ is not to be expected” (118). Today, the only way we can determine whether this historical compromise formation is still working is to believe that politicians and diplomats are still silently considering the idea of perpetual peace in secret, even though they continue to prepare for the next war.
One obvious question is why Kant would create a secret article and then immediately violate the conditions of secrecy by publishing the article in a public tract. The conspiracy described above concerning the idea of perpetual peace is shared between the philosopher and the statesman, and the terms are that the philosopher will be allowed to publicly speak of the idea as long as the statesman does not have to acknowledge the idea as his own, and can continue to consider the matter silently (i.e., privately). In a certain sense, even the publication of the secret article doesn’t violate the terms of secrecy, since the existence of the conspiracy between philosophy and politics would still have to be detected and publicly exposed. By all accounts, this secret has remained safe for the last two centuries and no one has spoken of it on either side. Philosophers continue to be berated by politicians for their childish talk of peace and other-worldly ideas, just as we can only imagine that statesmen continue to consider perpetual peace as something more than a “sweet dream” in their private apartments.
We should not forget that Kant’s publication of the secret article does not just violate the objective conditions of the secret by making it an “open secret,” but also involves the public as third party to the conspiracy. In diplomacy, the sudden revelation of a secret article in a public treaty is usually understood as a weapon that can be used by the weaker party to enforce the terms of the agreement. The stronger party could see this as a violation of the treaty, and choose to suppress the entire document through an official act of censorship. In The Conflict of the Faculties, published just three years later, Kant lays out this option to the State and advises against censorship for two reasons. First, “That kings, or king-like nations, who govern themselves according to laws of equality, should not allow philosophers as a class to disappear, or to be silenced”; and second, “That the philosopher’s talk of perpetual peace should not be understood as a kind of Propaganda, since the class of philosophers are incapable of forming themselves into a political party” (118). There is a third reason for revealing the existence of the secret article without the threat of censorship: any attempt to censor Kant’s treaty could turn an otherwise innocuous “process of communicating enlightenment” into a powerful weapon, one that could cause the heretofore secret conflict between philosophy and politics to break out in the public sphere.
Conspiracy of Cosmopolitan Design of Nature
If we accept that the idea of perpetual peace actually refers to the subject of a certain historical conspiracy between philosophy and politics at the end of the 18th century, there is nevertheless another deeper a conspiracy at work in what Kant refers to here and in the “Idea of a Universal History from a Cosmopolitan Point of View,” as “the secret design of Nature.” One formulation of this design is that Nature uses war as a means of achieving a lasting, if not, perpetual peace. But how precisely does nature, which Kant describes as a “great artist” (Natura Daedala rerum), accomplish this?
First of all, by restricting Humanity to occupy only one surface, and forming this surface into a globe so that all points must inevitably converge and meet at some point; second, by using war to disperse and thus populate all of the surface of the earth, even the formerly uninhabitable parts such as arctic oceans and vast deserts; third, by using horses and elephants to carry war more swiftly into even the most remote of places and putting all portions of the globe under the constant threat of war by foreigners; fourth, by creating a species of Humanity that serve to glorify war and who make war-like behavior into the most noble of moral virtues (whether that of martial courage or chivalry) and, therefore, as the condition of luxury and wealth for kings and nations; fifth, by increasing the cost of this luxury, the cost of maintaining a standing army, so that it becomes a constant source of national debt–“a modern infliction”–that weakens the sovereignty and security of the nation itself, forcing it to either spend this luxury in war and risk the consequences that cannot be known in advance, or increase taxation of its own subjects and risk revolutions and public revolt, including despotic calls for democratic reforms; sixth, by making the nature of war so inflationary and artificial a scourge that interrupts the circulation of communication and commerce even the most remote nations are forced by a common danger “to offer themselves, without any legal authority, as arbiters” in the conflicts between foreign nations; finally, seventh, to find the absence of international law as a means to prevent future wars between foreign nations as the very condition for the establishment of “a universal Cosmopolitan Institution” that will gather all nations under one form of sovereignty, or as Kant says, under one Master (since he remarks elsewhere that Humanity always needs a Master). Accordingly, the first act of this “great future political Body” would be to sue for peace, but the party to the suit would not be other nations, but Nature herself (the Absolute Master).
According to Kant’s seven-point outline of Nature’s secret design, today our global society is somewhere between the sixth and seventh steps. However, the future is certain and perpetual peace is even guaranteed as the End of History:
It seems, at first sight, a strange and even absurd proposal to suggest the composition of a History according to the world must proceed, if it is to be conformable to certain rational laws. It may well appear that only a Romance could be produced from such a point of view. However, if it is to be assumed that Nature, even in the play of human freedom, does not proceed without a plan and design, the idea may well be regarded as practicable; and, although we are too short sighted to see through the secret mechanism of her constitution, yet the idea may serve as a clue to enable us to penetrate the otherwise planless Aggregate of human actions as a whole, and to represent them as constituting a System. (25-26)
The final word in the above passage, “system”, implies a scientific point-of-view, which Kant opposes to a Romantic point of view. Romantic refers here not only to a literary genre of fictionalizing, but also to any theological or mythic view of History as anything other than a rational system of laws. We also find here Kant’s revision of the maxim concerning the aforementioned opposition between theory and practice, or between philosophy and politics (“What is right in theory ought to be possible in practice.”) Here, what is right is the idea of perpetual peace as the ultimate end of History, which ought to serve as a useful maxim for determining practical knowledge of this end.
There is a certain “cosmic irony” in Kant’s idea of perpetual peace: war is natural by design, but peace does not come from nature, only from reason. The irony is that the design that nature carries out through war ends up leading to a state that is beyond Nature, as well as beyond all natural history. And yet, Kant also paradoxically claims that this final state, a peace which is not a state of nature but rather a state of reason, does not come about through any act of will on the part of Humanity. In fact, Humanity is shown to be dragged to this inevitable and insurmountable truth kicking and screaming, a truth which Kant refers to as Fate and Providence (thereby uniting both Hellenic and Christian world-views on the final cause of all creation). In other words, it is only at the final stage in the process of enlightenment that Humanity is capable of achieving a state of peace that is perpetual and not merely a temporary cessation of war. We would thus be compelled to agree with the politician that this still remains a “sweet dream,” and yet, according to Kant, this would only attest to our lack of practical knowledge concerning the idea, since for us peace still remains a theoretical and speculative idea. Its reality is, in truth, only a “secret” that we are still incapable of apprehending due to our short-sightedness and our “unsocial sociability.”
Article II. — “No State having an existence by itself – whether it be small or large – shall be acquirable by another State through inheritance, exchange, purchase or donation”
Preliminary Article 2 of Toward Perpetual Peace reflects Immanuel Kant’s enthusiasm for the republican state form. One of the key elements in Kant’s proposal for a more pacific world was the existence of self-determining republics.[i] In Preliminary Article 2 Kant lays out the necessity for such self-governing independent states and stresses that they should not be subject to appropriation and exchange as was the custom in Europe in the era of aristocracy. In particular the Article critiques the practice at the time of the appropriation of states through royal marriages and alliances and the concomitant treatment of moral persons (which for Kant included both states and certain individuals) as mere things or objects of domination. This independent self that is the state should be free from domination by other states just as individual moral persons should be free from domination by third parties. Such an independent state is founded on the social contract freely entered into by the moral persons who make up the state. For Kant, moral persons (whether individual citizens or States) are not to be “used and abused as Things that may be managed at will”.[ii] Of course reflecting the paternalistic culture of his time such moral persons were, problematically, exclusively male.[iii]
Unequal States and Missing Persons
For Kant the State is “not to be regarded as a property or patrimony”. It is instead “a society of men, over which no one but itself has the right to rule or to dispone”.[iv] Today the question of the independence of sovereign states remains an unresolved issue. While states may be de jure independent, due to size, wealth and vulnerability this may not reflect the de facto reality. This anomalous state of affairs forces us to engage critically with Kant’s ironically worded treatise and to develop a more enlarged notion of political action and agency than Kant’s proposals envisaged. In an unequal world of states, domination over poorer and less powerful states continues as does domination over individuals. Not all states are free to decide their future constrained as they are by the cosmopolitan spectre of international capital and global financial markets as well as the enormous disparity between citizens and states in terms of access to wealth and the good life. In fact for many “moral persons” the material reality is one of poverty, suffering and death. The contemporary biopolitical state form makes it equally possible for persons to be treated as objects and managed or abandoned at the whim of elites as was the case in Kant’s time. At best we live in a time of an endlessly repeatable cycle of conflict and cessation of hostilities which is kept at bay for what passes for a peaceful alliance of world states, whether that be the United Nations or the European Union. The reality is that we continue to await a true Pacific Federation (foedus pacificum) and have instead a system of conflict management or peacekeeping which merely illuminates the reality of ongoing violence and domination rather than addresses it.
How then might we strive for a new thinking of the foedus which might allow for a more equal if not immediately pacific world? Our task would be to rethink critically not only the concept of the moral person on which the Kantian notion of the republic is based but also the concept of the polis and the foedus which emerge from this thinking. In other words what would a polis uncoupled from the bounds of territory look like and how might it allow us to continue the search for a cosmopolitical living together? Kant uses an arboreal metaphor in his fixing of the idea of the sovereign republic in Preliminary Article Two. He states: “Like the stem of a tree it has its own root, and to incorporate it as a graft in another State, is to destroy its existence as a moral Person; it is to reduce it to a Thing, and thereby to contradict the idea of the original Compact without which a Right over a people is inconceivable”. Kant’s state is doubly rooted in both the soil in which it is emplaced and the social contract. This rooting also fixes the individuals of such states in their place, as subjects and citizens of a particular nation. The rooted subject of the republic is constrained by the laws of citizenship. Such a fixing also constitutes an exclusion as for Kant the scope of who might be considered a moral person for the purposes of republican citizenship is a very narrow one. For him “mere auxiliaries to the republic” were to be denied full citizenship status. He included in this group women, children, and servants without property, as well as foreigners, strangers and visitors.[v] This territorializing of the moral person creates an unequal model of citizenship which minority rights struggles over the past two centuries have had to overcome.
In developing an enlarged model of inclusive citizenship we must first attain freedom from domination and exclusion at the local level of the state before we can even contemplate greater global equality. Such local struggles in the twenty-first century are part of a transnational web of actors acting in relation with each other to achieve greater global freedom. Even though Kant saw the world as a common possession of mankind, this common possession of the world is limited by the fact of the institution of private property. Citizenship grounded in property in the soil sees the earth as appropriable and confined to the state based on territory which has to be defended.[vi] The autonomous state while de facto free from domination must ironically continue spend large amounts of money on its own defence against other autonomous states. For example, the current ongoing “war on terror” is merely an extension of the Hobbesian state built on boundaries and self-defence against virtual enemies both external and internal.
Another Polis is Possible
Kant’s cosmopolitan republic creates the textual illusion of a community founded on the agreement of equal beings. However this grounded commonality of the state is founded on exclusions based on difference from the dominant commonality. What is necessary then is a new thinking of cosmopolitics based not on identity rooted in the soil of the nation but on singularities without identity. In this way we can see the emergence of an active form of citizenship based on the coming together of singular beings cut loose from the traps of personhood and territory, what Etienne Balibar has called “a new cosmopolitics, a cosmopolitics “to come”.[vii] For Balibar, this new cosmopolitics: “will also be a liberation of humankind. It will be a reconstruction of the properly human that was “lost” in its history”.[viii] This “cosmopolitics to come” attempts to redefine the space of politics not as the hegemonic territory of the nation-state but as a space of interaction which is not demarcated by the boundaries of the state. This self-fashioned assemblage of beings “pursues no objective other than ‘to be in common’ thanks to the world and, ‘for love of the world’.[ix] This being together in common of such beings is not in the name of an object such as the nation or territory, but rather the reverse, a being together outside and beyond these imposed hegemonic notions of political organization. This creates a model of community not as institutionalized political space but as the space of appearance between two or more unique individuals.
Indeed we might well look to a rethinking of the notion of the moral person, Kant’s basis for inclusion in a republic. This concept for Kant was not a broad one excluding as it did all but property-owning males. The political philosopher Roberto Esposito has argued for the deactivation of dispositifs such as that of the person in favour of the expansion of the space of the common. For him, the notion of the person inherited from Roman law and Christian theology constitutes a mode of disembodying the individual, of devaluing the material in favour of the abstract. This valorization of an abstract rational subject over the mere life of actually existing individuals leads to the denigration of the flesh in favour of abstract reason. Individual lives are devalued in favour of a politics which rules over these lives. As Esposito observes: “The person doesn’t coincide with the body in which it inheres, just as the mask is never one with the actor’s face”.[x] As such it can be seen as a dispositif which allows the material lives of individuals to be subject domination by more powerful third parties. For Esposito the praxis of material singularities coming together to act in common provides an example of the power of a collective being in common of material lives. This is a politics of life not a politics over life[xi] which provides a means of countering the dispositif of the person and the biopolitical governance and domination of lives through law. It looks to an impersonal force which dissolves the enforced distinction between the homogeneous non-differentiated subject of power and the flesh of individual lives, and reveals instead singularity in difference. This overcoming of the separation between bare life and Life is for Esposito the task of an affirmative biopolitics which is a continuous task, a work in progress, a becoming, and a continual beginning.[xii]
In rethinking Kant’s notion of the republic for today it must begin with a valorization of individual lives free from dominion of all kinds, including exclusion from full citizenship, in order to create a more truly equal polis based on singularity and difference in that every life is equally valuable precisely because it is different from every other life. In such a state of being in common differently can the ongoing project of social and political peace be addressed in a more productive fashion. We must imagine the polis not as the imposition of a bordered territorial unit and of an abstract form of subjectivity and citizenship but as the coming together of unique individuals. As Hannah Arendt put it: “The polis… is the organization of the people as it arises out of acting and speaking together, and its true space lies between people living together for this purpose, no matter where they happen to be”.[xiii] This fragile notion of the polis requires the constant support of political action and engagement by individual citizens. This rethinking and refinement of Kant’s original republican model allows us to visualize what Bonnie Honig has termed the advent of an “agonistic cosmopolitics”. For Honig, this is a never-ending process which: “is committed to the perpetual generation of new sites of action in concert on behalf of worlds not yet built”.[xiv] It is in other words, a world built on perpetual action by an expanded category of moral persons with the aim of world creation rather than that of world appropriation. In the light of such a reframing of Kant’s original model a revised Second Preliminary Article would read as follows:
The polis shall be built on the perpetual collective acts of singular beings in the name of yet unthought worlds and communities in a spirit of freedom and respect for difference.
Article III. — “Standing Armies shall be entirely abolished in the course of time”
Conflicts are inevitable in social life; more than that, in many circumstances they are beneficial for many people. Potential and actual conflicts among countries may seem to necessitate every country having a standing army, that is, a permanent, trained military force prepared at all times to fight a war. The near universality of armed forces among the countries of the world might seem to prove the point. Interestingly, the current fashion is to refer to military forces as defense forces, and for each country to claim its military exists in order to prevent wars rather than to wage them. Some people argue that to sustain peace a country must prepare for war. They point to the harsh reality that often other countries and leaders are aggressive and would use force to impose their will. Domestically as well, military forces are seen by many as the ultimate way to sustain domestic tranquility.
It also must be recognized that having a standing army has intrinsic benefits and therefore other reasons to exist, aside from its war-fighting capabilities or defensive value. A country’s standing army offers people in its country honorable careers, years of service to their country, working in close solidarity with others, and meeting exciting challenges. It provides jobs for people serving in the army and producing the goods and services for the military forces. It has symbolic significance, affirming the sovereignty of an independent state. Obviously, however, there also are dangers arising from a world characterized by many countries possessing standing armies. The dangers vary with the size, manner of control, equipment, and purposes of the armed forces. Such variations are important since some kinds of military forces reasonably prompt the concerns that people in many countries have about the dangers as well as the possible benefits of maintaining standing armies.
One set of concerns is that the leaders of such forces may develop a vested interest in exaggerating, even provoking, the threat of foreign enemies, thereby increasing their status and power. Leaders of military forces also may tend to stress the necessity of having ever growing budgets to keep ahead of foreign rivals. Furthermore, in many countries members of the public may fear that the military leaders, on their own or in collusion with civilian leaders silence would-be critics and opponents of their dominance.
Another set of dangers arise from the presence of armed forces within the world of states. As each state prepares to defend itself, it generally develops equipment and strategies to defeat potential enemies. Leaders of each country, looking at another country, can view their preparations as a threat against which they must prepare themselves. This constitutes a security dilemma that can drive arms races and fuel tragic misunderstandings. Indeed there is considerable evidence of the dangers of arms races.
Even in the best of circumstances, the existence of large military forces may drain human and material resources from other worthy purposes, including developing and sustaining alternatives to conducting conflicts violently. Their very existence and readiness to be deployed may result in their application to problems for which they are poorly suited. This includes in some countries their use to suppress domestic disorders and to impose domination by members of a small self-serving regime.
Despite such concerns and evidence, abolishing military forces of all countries may reasonably appear to be a rash, indeed, impossible and undesired solution. The people of the world need to consider ways to manage the risks of military forces while they try to maximize effective ways to wage conflicts more constructively and with less cost and risk than by relying on standing armies. Indeed, agreed-upon measures to manage military forces helped mitigate the risks of war between the United States and the Soviet Union during the Cold War. These measures included arms limitation treaties, confidence-building measures, hot lines for communication in crises, and non-offensive defense strategies. Although such measures to lessen the risks of military forces can be a step toward totally abolishing standing armies, by themselves they would not go far down that path. It is necessary to reduce the presumed need to have military forces. That need can be reduced in three kinds of ways: first, by creating other ways to provide the intrinsic benefits of having standing armies, second by reducing the incidence and severity of international and domestic conflicts, and third, by enhancing non-military ways of conducting and settling conflicts.
A wide variety of ways already exist that provide some of the intrinsic benefits that maintaining military forces provide, and they could be greatly expanded. These alternative ways include domestic police forces, whose status and resources might well be enhanced in most countries. International programs of aid for military equipment and training could be better spent on aiding non-military police and legal personnel. Another way is to expand the governmental and nongovernmental programs for people to serve in other countries to aid in economic development, improve health, or provide other services.
Global warming and the increasing global population place more and more people all over the world at risk of natural disasters arising from hurricanes, droughts, earthquakes, and flooding. International organizations might be established with a standing international force, trained and equipped to be dispatched to help in recovering from such increasingly likely disasters. In between disasters, besides doing preparatory training, they may be engaged in constructing infrastructures more resistant to natural disasters. Such organizations might function on the country, regional or global level.
Another basic way to reduce the need for standing military forces is to change the conditions that tend to result in severe international and domestic conflicts. There is considerable evidence that countries that have high degrees of integration and mutual dependence are not as likely as less integrated countries to have conflicts that escalate into wars. Similarly, countries that share cultural norms are less likely to wage wars against each other. One of the best documented propositions in peace studies and international relations is that democratic countries do not wage overt wars against each other. Furthermore, democracies tend to avoid civil wars based on ethnic, religious and economic inequalities.
The existence and adherence to particular norms and practices also tends to reduce the possible reliance on military forces. This is the case for norms upholding the protection of basic human rights, and norms of tolerance for differences. Civil and international wars would be less likely to occur when such norms are implemented.
The third basic way of reducing the need for standing military forces is strengthening the non-military ways of fighting and settling conflicts. It is noteworthy that waging wars is not celebrated as it so often had been in past human history. Presently, war may be thought to be necessary, but fighting a war is now generally to be regretted. Another way to lessen reliance on national military forces is to deploy global and regional forces that deter the outbreak of wars or hasten ending them. The UN peacekeeping forces, with all their limitations, indicate the possible effectiveness of that alternative in particular circumstances. International organizations, as well as states may also intervene to apply economic sanctions and to mediate conflicts, thereby avoiding wars or speeding their settlement. The UN serves in this capacity as well as regional organizations such as the Organization on Security and Cooperation in Europe (OSCE).
These three ways to reduce standing armies and manage their unfortunate dangers are actually becoming increasingly manifest in the world. In concluding these comments on the possibility of abolishing all countries’ military forces, the evidence of these developments and their implications for reducing and ending countries’ reliance on armed forces will be discussed. First attention should be given to the decrease in the incidence of wars and in the number of deaths resulting from wars. This is happening despite growing numbers of people and of states that may engage in wars and the growing capacity to wage wars that inflict huge numbers of deaths. The decline in wars and war deaths is well documented. It is noted for the decades since the end of the Cold War and for longer periods of time as well. International wars are now quite rare, while most contemporary wars are internal to a country. National standing armies are not obvious bulwarks against civil wars and are hardly reasons to for countries to maintain large armed forces.
The increase in peacefulness in the world needs to be explained. Many of the reasons for this trend are consistent with the strategies noted above for reducing and eventually abolishing military forces. The growth in structural and normative constraints against killing people in wars and the growing reliance on more constructive ways of waging and overcoming conflicts contribute greatly to explain the decline in deadly violence. The increase in those constraints and in nonviolent ways of pursuing significant conflicts should reduce the widespread belief that armed forces are a necessary part of the world system.
Many of the factors that help explain the declines in violence also are relevant to the decreasing need for national military forces, by reducing intrinsic benefits, making for less frequent severe conflicts, and by providing non-military ways of waging and settling conflicts. Consider the changes in the many dimensions of globalization. The rapidly increasing global economic integration increases the costs of waging disruptive wars. The increasing global interdependence constrains dangerous conflict escalations. The amazingly rapid expansion of communication among people everywhere and of information transmission means that knowledge about emerging violence is more likely to be noticed and actions taken to halt it. Atrocities in warfare are less likely to be committed and perpetrators are more likely to be judged to have committed crimes than in the past human history. The growing number and expanding scope of international organizations means more actors can mitigate and constructively transform many conflicts. They provide mediating and other intermediary services at various levels of antagonistic sides. The end of the Cold War, and of the readiness of the Soviet Union/Russia to exercise its veto power, enabled the UN Security Council to undertake many more peacekeeping tasks, which expanded greatly. The great expansion of international nongovernmental organizations involves many civilians around the world in efforts to advance health, economic development, social equality and human rights. As a matter of fact, life expectancy has been rising in the world and the proportion of the world’s population living in poverty has declined.
The increasing attention to the condition of women’s lives and the increasing success in gaining greater equality for women in the public as well as private sphere is associated with increasing peacefulness of the countries of the world. Relatedly, in recent decades, the number of democratic countries has risen. The expansion of knowledge about and the practice of conflict resolution help manage the emergence, escalation, de-escalation, settlement and peacebuilding. This may be seen in the increasing role of mediation in world affairs and the negotiated ending of wars. Furthermore, the rise in knowledge about nonviolent action and the increase in its effective application enhance greater recourse to nonviolent methods of struggle. There is often some backward slippage in some of these developments. However, these developments tend to reinforce each other and converge to help mitigate the emergence and destructive escalation of conflicts and to enhance managing conflicts without recourse to state armed forces.
The abolishment of all military force in all countries will not happen at once or in the near future. But it is ultimately feasible and progress in working toward it can lessen the dangers of having many large military forces around the world. There are three conceivable pathways toward abolishing large military forces. One path would be for a single country to take control of all the world’s military forces; this is the least likely and most undesirable path. Another route is by decisions made by individual countries not to have military forces. Several countries presently do not have any armed forces, but they possess police forces of varying size and some have security arrangements with other countries or international organizations. Thus, a standing military force has been forbidden by the constitution of Costa Rica since 1949, and Cost Rica has experienced no wars or military coups since then. Panama abolished its armed forces in 1990; Liechtenstein abolished its army in 1868; and Iceland has not had military forces since 1869, but is a member of NATO.
The most plausible path to abolishing all national armed forces is through multilateral agreements to greatly limit the size and capacities of all countries’ armed forces and to establish a global body exercising control of an international military force. In order to reach a substantial reduction in all military forces under the control of individual countries, some kind of legitimate global authority would be necessary. That is difficult to imagine at present. But some steps in that direction have been taken and indicate ways to move forward. These might include standing UN military forces for peacekeeping and peacebuilding operations and permanent international agencies to respond to the impact of global warming. Regional political and economic institutions might be further developed, experimenting with different ways of making collective decisions and allowing for local autonomy. Standing armies will not soon disappear, but working to reduce their size and reliance upon them will in itself be helpful and generally beneficial.
Article IV – “No National Debts shall be contracted in connection with the external affairs of the State”
Perpetual Peace, Debt and the Question of the Human Economy
Why should a critical analysis of public debt in the wake of the credit crisis of 2008 draw on Kant’s thinking in Perpetual Peace? In this essay, we shall argue that Kant provides a useful starting point in his focus on a “dangerous money power” that is bound up with debt, “the credit system” and war. However, we need to revise Kant’s approach to deal with the complexities of modern markets. We also need to examine Kant’s cosmopolitanism; in particular its relevance for the recent work of scholars and activists who are defining a human economy that serves people rather than profit. Can this radical project be informed by traditions of thinking that –taking Edward Bernstein’s lead- see a critique of “received opinion[s]” as central to Kant’s thought?[i]
For Kant the fundamental problem of debt and the credit system is that it “constitutes a dangerous money power.” The idea of “money power” is not explored in detail, but national debt is seen as a “war treasure” that enables one nation to fund aggressive actions against another. This is because national governments can secure borrowings against future income from taxes. Although a state’s popular tax base may be limited, Kant implies that a ‘war economy’ could exist indefinitely. A state could continue taxing those very industries that profit from providing the resources for continuing conflict. These thoughts sit strangely alongside Kant’s assertion that war must bankrupt states. Indeed, the main logic of his arguments is that states could have ‘good wars’ and become wealthy.[ii] So, the notion of ‘war economy’ is perhaps too limited to grasp the relationship between public debt, credit and financial markets. Kant’s insights on the power of money thus need updating.
We need to untangle a number of themes from Perpetual Peace and re-work their relevance for a thinking of national debt today. From the perspective of the long durée there are certainly strong historical links between national debt and war. The origins of the national debt in the UK, for instance, can be traced to the reign of William III, and his desire to fund various imperialistic adventures. However, it is also worth remembering Karl Polanyi’s arguments. Whilst ‘haute finance” was responsible for “innumerable colonial crimes and expansionist aggressions” between 1815-1914, the system of international finance also helped avoid “general conflagration” (Polanyi 2001, 16). We do not have the space in this short essay to deal with this theme properly. However, we can stress one main point: the contemporary relationship between national debt, finance capital and an international system of derivatives trading is perhaps more complex than the brief analysis in Perpetual Peace allows.[iii] Given constraints of space, we can only produce a rough sketch; notes for a future engagement.
The destructive nature of money power has been revealed by the credit crisis of 2008. The credit crisis has very little directly to do with war; indeed, building Polanyi’s point, the ‘violence’ wrought by finance capital (at least from the perspective of Western European terms) has been within the post war era of peace and reconstruction. This point takes us directly back to the concern with public debt. The most significant factor in the growth of public debt in the last five years has been the bail out of the banks in the wake of 2008. We need to understand how the inherent pathologies of capital markets allowed ‘money power’ to grow to such an extent that, when the market failed, national governments were compelled to prop up the international banking system with vast amounts of public money.[iv]
As Will Hutton has pointed out, the terms of the debt-relief packages provided by the EU and the IMF (to take just one example) ‘include the sacking of a fifth of Greece’s public sector workforce, swingeing tax increases and the biggest, fastest privatisation programme, relative to national output, ever mounted’.[v] Such is the scale and intensity of the repayment programme that Greece has had to commit to spend ‘around 40% of its current GDP’ over the next three years; terms that approximate to the reparation payments that were demanded by the allies on Germany after the First World War. These facts suggest that there is much in Andrew Haldane’s assertion that “in terms of the loss of incomes and outputs” the consequences of the credit crisis are “as bad as a world war.[vi]
How did the power of money become so dangerous? To keep our analysis within bounds, we cannot trace the roots of the current crisis back to the 1970s [vii] (or further) and we do not have the space to describe the growth of the various markets for finance capital. Our starting point is the deregulation of finance markets in the mid 1980s. The ‘big bang’ represented a serious qualification of principles of regulation that had developed in post war capitalism.[viii] De-regulation produced (or encouraged) the phenomenon of hot money.[ix] Hot money (Minns, 2011, 29) is immensely liquid and can be ‘de-invested’ from one economy and reinvested in another if a higher rate of return seems likely.[x] The consequences of these rapid movements of capital can be devastating for a national economy.[xi]
De-regulation, and other economic reforms, also helped to encourage capital to chase investments. This led to the growth of “financial innovation” (Engelen et al 2011, 13). Banks began to spread credit risks “around a much wider range of investors” than was usual. Risk spreading, it was argued, would make banks less vulnerable to “economic shocks.” The spreading of risk was linked to the creation of sophisticated financial products such as collateralised debt obligations (CDOs) that effectively “sliced and diced” loans and sold them on to chains of investors.[xii] The new reality of securitisation was acknowledged by the Basel II Convention which reduced the amount of capital that banks were required to maintain. This practice was justified by the understanding that risk was dispersed and managed.
One of the main areas of innovation was in the US sub-prime mortgage market. Sub prime mortgages were taken out by individuals who were regarded as credit risks, either because they had insufficient resources, or a poor credit history (Amato and Fantacci: 2012, 68). Apologists for securitisation saw the process as more or less extendable; indeed, the spreading of risk was even seen as a resolution of the problems of the post war economic order as it produced growth, extended credit and kept inflation low. However, there were warning signals in the US. Rates of re-possessions increased steadily from 1998. From 2007, they gathered pace and moved from low income groups to the middle classes. In 1998 the collapse of Enron and WorldCom bankrupted one of the major hedge fund management companies (Harvey 2010: 7-8). Once investments in sophisticated financial products were found to be more or less worthless, banks, insurance companies and other institutional investors such as pension funds and even local governments- found themselves in serious difficulties.
We need to look at one other factor before returning to the issue of public debt.[xiii] The globalisation of capital markets is inseparable from the mass production and availability of consumer goods at affordable prices that characterised the post war reconstruction of Western European economies. The creation of domestic markets for the consumption of mass produced goods required innovations in methods of production and provision of credit. However, stability of wages was also necessary to sustain “effective demand” (Harvery 2010: 107) and prevent the “crises of under-consumption” that arguably lay behind the depression of the 1930s. In a period of falling wages, extending credit to those previously deemed a credit risk was a way of sustaining levels of consumption.[xiv] Indeed, financial innovation was presented as the democratisation of debt (Engelen et al 2011, 17)- bringing credit to households that could otherwise not afford to borrow money- a point we touched on above.
We need to look behind this rhetoric, and understand the relationship between falling wages and dependency of credit. Note the interaction between the squeeze in wages and the credit crisis of 2008:
Those whose wages fell behind borrowed more than they could afford, contributing to the credit crunch. Average household debt was 45 per cent in 1980 but rose to 157 per cent in 2005. And the decline in wages was made up by increased profits – much of which was used for financial speculation rather than productive business investment, helping drive the UK’s heavy reliance on finance and encouraging the overinvestment that led to the crash. (Lansley, 2009, 5)
This paragraph links together the decline in wages, increased borrowing and financial speculation as factors that lay behind the credit crisis of 2008. The argument stresses that financial speculation has to be understood within a network of problems- and suggests that reforms of the financial system need to be accompanied by an emphasis on ‘productive’ economies. These are complex themes. Within the confines of this essay, we can only pursue our concerns with public debt- but- in the concluding sections of our argument we will sketch out how a framework for economic reform might make use of Kant’s thinking.
To return to our main problem. Why did public debt rise in the wake of the credit crisis? The answer is that: “the state socialized banking losses” (Engelen 164). We can take the UK as an example. The reliance of the banks on “public money” became clear when the Treasury announced in 2007 that the government would guarantee deposits in Northern Rock. Other banks were effectively taken into public ownership in 2008 and 9. The fundamental point is that central bank reserves and treasury resources where used to save bankrupt institutions and inject liquidity into markets. Governments also took on “bad assets”[xv] from the banks and other institutions. [xvi] These activities ran up government borrowing, as did the effects of the recession. High unemployment and slow economic growth reduced tax revenues at the same time as the government had to spend more on welfare benefits.[xvii] This problem was exacerbated, in both the UK and the US, by attempts to stimulate growth through tax cuts.
Rather than being a blip in the post war economic order the credit crisis is perhaps symptomatic of deeper, unresolved and underlying tensions. Apologists for austerity have presented the crisis in terms of an over-reliance on public spending. A ‘top heavy state’ has been sucked under by its own debts. The only solution is to scale back welfare so that ‘we’ can ‘live within our means.’[xviii] The crisis is thus presented a necessary re-settling of the economy: the inevitable crash after the good times; a kind of ‘natural’ re-ordering of affairs. However, there is a different way of thinking.[xix] As a way into this theme, consider the following argument:
Appealing to the market as an independent authority, unconnected with human decisions about ‘housekeeping’, has meant… the extraordinary phenomena of a financial trading world in which the marketing of toxic debt became the driver of money-making – until the bluffs were all called at the same time (Williams, 2009).
We must face up to an economics that has privileged the unregulated market above other ways of distributing resources. The recession has revealed the exorbitant social costs of an ‘authority’ beyond ‘human decisions’ or political control. We want to take a couple of steps back from these pressing questions of institutional change, to examine the broader framework in which critical questions of economy are beginning to be asked.
How does this lead us back to Kant? Perpetual Peace concludes with an outline of a “law of world citizenship”. Kant’s cosmopolitanism has indeed been an inspiration for much recent thinking on human rights and international cooperation, as well as lying behind that other celebrated attempt to elaborate a contemporary Kantian approach to international justice; Rawls’ Law of Peoples. Kant’s cosmopolitanism has had a real influence on approaches to human rights, international ethics and social justice. However, in the wake of the credit crisis, a different, more radical form of cosmopolitanism appears to be emerging.[xx] Scholars such as Leung (2012), Wall (2011) and Douzinas (2007) have begun to define a radical cosmopolitanism that expresses itself through a right to resistance and summons the power to create a new order. Whilst this suggests an important way forward, this essay will briefly examine a slightly different approach. Scholars and activists linked to the World Social Forum, and, in particular, a project coming out of the 2009 meeting in Belém, Brazil, have started to think in new terms:
When the economic worldview becomes an end in itself, it denies democratic processes the right to define a human project with a human meaning…. (Laville 2009: 81)
What is the right to an economy with a human meaning? As many apologists for human economy admit, the term is broad and open to different interpretations. There must, however, be some point in making the claim to the centrality of the human being to economics. One line of thinking, as in the sentence quoted above, links “human meaning” to democracy. This opens an intriguing line of inquiry, as it suggests that a human economy must be democratically organized. This is not without its problems! As we are a long way from defining a democratic economy, we will merely suggest that one way of bringing together these concerns takes us back to Perpetual Peace and Kant’s thought in general (Hart et al 2010, 7). It is indeed interesting that Laville’s argument quoted above echoes the Kantian description between means and ends. Could we say that – from a Kantian perspective- an economy would treat human beings as ends in themselves? What does this mean? Are we invoking some kind of moral law of economy? How would this link to the question of economy?
We can take one broad orientating point; the reference to the “wider community of the peoples of the earth” in the concluding paragraph of Perpetual Peace. Without being able to reconstruct this argument in detail here, we want to follow this claim through to another text in which Kant turns to the issue of cosmo-politics and the “progressive organization of citizens of the earth” (Kant, 2006, 238). If an economic crisis causes devastation on a global level, questions of global economic organization are raised. The need for ‘good’ institutions is not a matter of individual or national agreement, but of cosmopolitan organization. This organization cannot, though, proceed with the mathematical abstractions of conventional economics; nor can we see the market as an “independent authority” detached from “human decision making.” Whilst this may not necessarily draw on a Kantian notion of the moral law, if we return to Bernstein’s call for a new acuteness of thinking with which we opened this essay, it might even be that honoring the promise of Perpetual Peace points towards the need for creative intersections between Kant, heterodox political economy and a broader understanding of how we might think about economy differently. Whilst taking on finance capital could prove a little demanding, re-reading Perpetual Peace might at least warm the hearts of some “republicans in the domain of socialist thought”[xxi] – and point towards the ongoing relevance of Kant’s essay to working our way out of the present predicament.
Massimo Amato and Luca Fantacci, The End of Finance (London: Polity, 2012)
Eduard Bernstein, Evolutionary Socialism (London: ILP: 1917)
Jacques Derrida, Of Hospitality (Stanford: Stanford University Press, 2000).
Costas Douzinas, Human Rights and Empire (London: Routledge, 2007)
Ewald Engelen et al, After the Great Complacence (Oxford: Oxford University Press, 2011)
Andrew Glyn, Capitalism Unleashed (Oxford: OUP, 2006)
Andrew Haldane, “A Leaf Being Turned” at The Bank of England
Keith Hart et al, ‘Building the Human Economy Together’ in The Human Economy, eds. Keith Hart et al (London: Polity, 2010)
David Harvey, The Limits to Capital (Routledge, London, 1982)
David Harvey, The Enigma of Capital and the Crisis of Capitalism (London: Profile Books, 2010)
Will Hutton, Europe Needs a New Financial Deal, Online at The Guardian
Hilary Ingham and Steve Thompson, ‘Structural Deregulation and Market Entry’ Fiscal Studies (1993) Vol 14, no 1, pp 15-41.
Immanuel Kant, Anthropology from a Practical Point of View (Cambridge: CUP, 2006)
Immanuel Kant, Perpetual Peace, At Constitution.org
Jean-Louis Laville, ‘Plural Economy’ in The Human Economy, eds. Keith Hart et al (London: Polity, 2010)
Gilbert Leung, ‘Towards a Radical Cosmopolitanism’ in Douzinas et al New Critical Thinking (London: Birkbeck Law Press, 2012)
Karl Marx, Capital Volume 3 (Moscow: Progress Publishers, 1954)
Richard Minns, The Cold War in Welfare (London: Verso, 2011)
Karl Polanyi, The Great Transformation (Boston: Beacon Press, 2001)
John Rawls, The Law of Peoples ( Harvard, Harvard University Press, 2001)
Susan Strange, Casino Capitalism (Oxford: Blackwell,1986)
Illan Rua Wall, Human Rights and Constituent Power: Without Model or Warranty (London: Routledge, 2011)
William White, ‘How to put the Global Economy on a Sustainable Growth Path’ OECD Observer, May 2010, at (oecdobserver.org)
Rowan Williams, ‘Human Well Being and Economic Decision Making’ (2009) rowanwilliams.archbishopofcanterbury.org
Stewart Lansley, Unfair to Middling; How Middle Income Britain’s Shrinking Wages Fuelled the Crash and Threatened the Recovery, Unfair to Middling PDF
Article V – “No state shall intermeddle by force with the Constitution or Government of another State”
For what can justify it in doing so? Perhaps the scandal (das Skandal) that one state gives to the subjects of another state? It can much rather serve as a warning to them, by the example of the great troubles a people has brought upon itself by its lawlessness; and, in general, the bad example that one free person gives another (as scandalum acceptum) is no wrong (Läsion) to it. But it would be a different matter if a state, through internal discord, should split into two parts, each putting itself forward as a separate state and laying claim to the whole; in that case a foreign state could not be charged with interfering in the constitution of another state if it gave assistance to one of them (for this is anarchy). But as long as this internal conflict is not yet critical (noch nicht entschieden ist), such interference of foreign powers would be a violation of the right of a people dependent on no other and only struggling with its internal illness; thus it would itself be a scandal given and would make the autonomy of all states insecure. (8: 346)[i]
In accordance with the structure of Kant’s Essay, which is modeled on the form of a peace treaty, the preliminary articles are supposed to set out conditions under which the definitive articles that form the core of the treaty might be established. They are framed in the light of practices current in the 18th century conduct of diplomacy and international relations, when limited wars fought between the armies of individual states were accepted means to resolve conflicts. Thus, Articles 3, 4 and 6 refer to the drawing up of duplicitous treaties, the maintenance of standing armies, the use of credit to finance wars, and recourse to forms of hostility that served to undermine the possibility of future trust, such as assassination, chemical weapons and incitements to treason. Articles 2 and 5 sought to affirm the integrity and inviolability of existing states, presumably in order to reassure the parties involved that the definitive articles that follow will not encroach upon their autonomy and independence.
Herein lies one of the major weaknesses of Kant’s conception of the means to perpetual peace and his argument for the adoption of those means. It is not simply, as Habermas and others have pointed out, that he writes from the perspective of an 18th century conception of states and international order, well before the devastating wars fought on the basis of nationalist, ideological and theological beliefs in the 19th and 20th centuries.[ii] It is not simply that he operates with a naïve conception of ethnically and linguistically homogenous peoples organized into states, so that the terms for peoples and states can be used interchangeable. It is not simply that he could not foresee the many ways in which the lives and wellbeing of peoples and states have become interconnected, so that their fortunes are intimately bound up with each other’s processes of internal government. All of these historical and factual constraints serve to limit the relevance of Kant’s Toward Perpetual Peace: A Philosophical Project for the maintenance of peace in the 21st century. In addition, there are conceptual difficulties internal to his argument. Many of these conceptual difficulties turn upon his commitment in Preliminary Article 5 (PA5) to a strong conception of the autonomy of individual states.
PA5 proposes a principle of inter-state relations that is prohibitive and ‘strictly valid’: no exceptions to the rule against forcible interference in the government of other states are to be tolerated. Whatever the nature of their internal lawlessness, this cannot be considered harmful, injurious or even scandalous to neighbouring states to a degree that would justify intervention. At best, Kant suggests, it can serve as a warning of the evils that a state might bring upon itself by virtue of such lawlessness. Leaving aside the case of outright civil war, where the state has dissolved, where anarchy prevails and intervention on the side of one party is allowed, any intervention in the constitution or internal government of another state constitutes ‘a violation of the right of a people.’ It is itself a scandal that would ‘render the autonomy of all states insecure’ (8: 346).
Kant’s argument in support of PA5 is contradicted in several respects by his argument for the Definitive Articles, particularly that for the Second Definitive Article. For this argument relies on an analogy between individuals in a state of nature and peoples organized into states prior to the establishment of a system of international law or right:
Nations, as states, can be appraised as individuals who, in their natural condition (that is, in their independence from external laws) already wrong (lädiren) one another by being near one another; and each of them, for the sake of its security, can and ought to require the others to enter with it into a constitution similar to a civil constitution, in which each can be assured of its right. (8:354)
As Kant had already explained at the beginning of this section of Perpetual Peace, the state of nature is a state of war in the Hobbesian sense of the term: not necessarily a state of perpetual conflict but at least one in which there is the constant threat of hostilities. It is because of the perpetual threat of conflict in the state of nature that he can say that individuals cause harm to one another by simply by virtue of their proximity. For this reason, individuals have the right to compel others to enter into a civil, law-governed state. Comparing peoples organized into states prior to the establishment of international law with persons in a state of nature leads to the conclusion that there is only one way that states, like persons, can leave their lawless condition:
It is that, like individual human beings, they give up their savage (lawless) freedom, accommodate themselves to public coercive laws, and so form an (always growing) state of nations (civitas gentium) that would finally encompass all the nations of the earth. (8: 357)
The establishment of such a world state, involving the subjection of existing nations to coercive laws, would contradict PA5. Even if it were not taken to imply that, like individual persons in a state of nature, states could be forced to join this state of nations, their subjection to coercive laws would entail the possibility of interference with their government. However, at this point Kant abandons the analogy and denies that individual states should be required to adopt a solution to the threat of perpetual hostility analogous to that required for individuals. Rather, he says they should adopt a constitution under which each is guaranteed his rights ‘similar to that of a civil one.’ The constitution that establishes a state of peace among nations is similar but different since it does not establish a super-state made up of nation states, but rather a ‘league of nations’ (ein Völkerbund) that does not involve coercive laws but only a pact or agreement to avoid war.
Why does Kant abandon the analogy and retreat from the conclusion to which it leads, namely a world state made up of member states? His immediate argument is far from conclusive. It would lead to a contradiction, he says, between the presupposition that we are dealing here with a state of nature that obtains between many separate peoples organized into states and the proposed outcome, namely a further state. Like all states, this would be divided into ‘a superior (legislating) and an inferior (obeying, namely the people)’ (8: 354). There is only a contradiction here because Kant supposes that the resultant super-state would involve fusing together the members into a single nation or people. But this is not the only way to conceive of the outcome. A super-state made up of individual peoples organized into states and retaining a high degree of autonomy in their internal constitution and government, along the lines of the European Union, would be another way to resolve the initial problem. This would preserve the integrity if not the complete autonomy of the individual peoples concerned.
Indeed, Kant canvassed a solution of this kind two years before in the essay On the common saying: That may be correct in theory, but it is of no use in practice. There he argued that the only possible remedy for the insecurity of property and independence among nations was
a right [law] of nations, based on public laws accompanied by power to which each state would have to submit (by analogy with civil right, or the right of a state, among individuals); for, an enduring universal peace by means of the so-called balance of power in Europe is a mere fantasy … (8: 312).
Kant acknowledged that this solution might be decried as impractical: states would never submit to coercive laws regulating their actions. He also acknowledged the risk of despotism that emerges when states have grown too large. However, he nowhere suggested that the problem with a cosmopolitan constitution that established international law along with the power to enforce it was that this would result in fusing the distinct peoples of the world into a single people. There is undoubtedly a sense in which, under a cosmopolitan constitution with enforceable laws, all individuals would be global citizens endowed with certain rights. But this common framework is perfectly compatible with substantial differences in the rights and duties allocated to the citizens of particular nation states. Forms of differentiated citizenship even within nation states have become familiar since the late 20th century, as political theorists attempt to address the problems of cultural difference that persist in the multi-nation states that have emerged in the aftermath of extensive colonization by major powers.
Kant offers a further argument in Perpetual Peace for abandoning the analogy between individual persons and individual peoples in a state of nature and rejecting the idea that individual peoples might be compelled to enter into a regime of international law. What holds for individual human beings in that lawless condition of the state of nature, namely that they should leave this condition and enter into a civil constitution, cannot hold for states since,
as states, they already have a rightful constitution internally and hence have outgrown the constraint of others to bring them under a more extended law-governed constitution in accordance with their concepts of right. (8:355-356)
The argument manifestly misses the point of the analogy, which is to treat individual states in the same way that his argument for establishing states in the first place treats individual persons. Following through the analogy would imply the need for a ‘rightful constitution’ governing the behaviour of states toward one another. In other words, it would require the establishment of a super-state, the members of which would be individual states subject to a rule of (enforceable) international law in the same way that individuals are subject to a rule of law under a civil constitution. But Kant does not follow through the analogy, for the reason that individuals organised into state ‘already have a rightful constitution internally.’ Why does the existence of an internal constitution and rule of law mean that peoples organised into states cannot be constrained by other nation states to enter into a regime of international law? To suggest that it does exposes the strength of Kant’s commitment to the autonomy of individual states as this is affirmed in PA5. It is not only that their having a rightful constitution prohibits interference in their internal government, but also that it prohibits interference with their external conduct as well. States, unlike individuals, cannot be forced to act within the constraints of law.
Perhaps one could provide reasons for this. The problem, after all, is to abolish war. States seeking to constrain others by force amounts to the perpetuation of war. So the only possible path to perpetual peace is by agreement, not force. But then the question arises, if this pacifist argument for the establishment of a rule of law were accepted in the case of states, why would it not be accepted in the case of individuals or indeed of peoples living in a state of nature? If there is reason not to establish a cosmopolitan rule of law by force, why does this not apply to the establishment of a civil constitution as well? In any event, this is not the reason Kant gives. He suggests that the simple fact of having a rightful constitution means that peoples organised into states have outgrown the right of others to constrain them, as though peoples organized into states never inflicted injury or harm upon other states or peoples, or even on some of their own citizens. However, we might try to defend Kant at this point by suggesting that he is not talking about actual states but rather people organized into states along the lines suggested by the First Definitive article, that is, subject to a republican constitution. He does, after all, argue that a republican constitution offers the best chance of achieving perpetual peace because it requires the consent of those who will have to bear the burdens of war, namely the citizens (8:350). However, if the argument that states should only enter into a rule of law among themselves is restricted to those with a republican constitution, there is an implicit qualification to PA5. Kant does not say that no republican state shall forcibly interfere in the constitution and government of another republican state, and even if he did, problems would remain with regard to the application of this principle to actual states. Who would decide whether they were republican or not, and whether therefore intervention was justified?’
Elizabeth Ellis offers another rationale for Kant’s refusal to follow the dictates of pure reason and follow through on the analogy between persons and states in a state of nature, which turns on the difference between pure or conclusive right in accordance with reason and ‘provisional right’ which can exist even in the absence of a law-governed condition among the parties concerned. She refers to Kant’s argument in the Rechtslehre with regard to property right, where he defends rights acquired over time in the pre-civil state of nature, even though these have no legitimate basis. Overturning or failing to recognise such rights once a civil condition was established would be counter-productive and lead to instability that would threaten the maintenance of the civil condition itself. [iii] Kant’s position in Perpetual Peace may be understood along these lines. While the only rational basis for peace is the establishment of world government, we are far from being able to implement this idea of reason. What we do have is an imperfect law of nations, that includes the strict inviolability of state sovereignty, and that does provide a framework within which the rights of individuals may be protected, however imperfect this may be. Although this provisional right (law) of nations ‘falls far short of rational legitimacy, it at least preserves the possibility of progress toward more perfect governance.’[iv]
While this might serve as a defence of Kant’s conception of the provisional right of states in his own time, it is no longer plausible to argue that it includes such a strong conception of state sovereignty. In part, this has to do with what states themselves have become in the aftermath of colonialism, world wars and the increased movement of peoples around the world. States are increasingly multi-national bodies, comprised of linguistically and culturally diverse populations, so that it is no longer plausible, if it ever was, to treat them as expressions of a homogenous people. In part, this has to do with the increasing interconnectedness of the well being of peoples, nations and state populations around the world. Most significantly, however, it has to do with a fundamental shift in the international norms governing intervention in the domestic government of sovereign states.
The framework of international order established after WWII in the form of the United Nations embodied a fundamental tension between a commitment to the fundamental human rights of individuals and a commitment to mutual respect for the sovereignty of members: article 2(7) of the UN Charter prohibited interference even by the UN in the domestic jurisdiction and government of member states. This prohibition against interference in the government of states was routinely invoked to condemn interventions such as the Vietnamese invasion and overturning of the Pol Pot regime in Cambodia 1977, or the proposed intervention in Darfur in 2004.[v] However, at the 2005 World Summit, the 192 members of the UN General Assembly adopted the principle that sovereign statehood implied a ‘Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’. This resolution specified that each individual state bore this responsibility and went to add that the international community also had ‘the responsibility to use appropriate diplomatic, humanitarian and other peaceful means’ to help to protect populations. In this context, the resolution continues:
… we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case by case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity …[vi]
The adoption of the Responsibility to Protect principle followed decades of debate over the merits and legitimacy of a right to humanitarian intervention in cases of gross human rights abuse. While it might be argued that there is a duty on the part of all states to protect the fundamental rights of persons, in the absence of publicly agreed laws backed by coercive force and adjudicated by impartial judges, this can only be a provisional duty in Kantian terms.[vii] This is broadly speaking the international situation at present. The Responsibility to Protect was not adopted as a provisional duty of justice on Kantian grounds, but rather because the terms of the debate were shifted away from the rights of those suffering from abuse or government inaction and towards the responsibilities of governments.
It is at this point that the conflict with Kant’s PA5 becomes clear. The Responsibility to Protect doctrine abandons the presumption that sovereignty implied a strong commitment to non-interference in favour of the presumption that sovereignty implied certain responsibilities towards those over whom it was exercised. In itself, the idea that government implied responsibilities towards the governed was not new: it can be found in Locke’s conception of the contractual basis of government and his doctrine that failure to meet those responsibilities implied a right of rebellion. What is new, however, is the idea that states are accountable to the international community for their failure to fulfil those responsibilities and that, in certain cases, intervention by force may be justified. The Responsibility to Protect doctrine may appear consistent with Kant’s PA5 to the extent that it does not explicitly licence individual states to intervene in the internal affairs of others but rather ‘the international community.’ However, this is an ambiguous term that under the current system does not specify a particular moral agent. In practice, it points to individual states acting alone or collectively with the imprimatur of the Security Council. Indeed, in April 2006 the Security Council unanimously reaffirmed the Responsibility to Protect principle and committed itself to take appropriate steps where necessary for the protection of civilian populations.[viii]
The UN’s adoption of the Responsibility to Protect doctrine makes it clear that Kant’s strong endorsement of the inviolability of state sovereignty belongs to an earlier period of provisional international right. A draft treaty for the establishment of perpetual peace drawn up today would include a modified form of respect for the independence of sovereign states that specified conditions under which forcible interference in their domestic government might take place. The norms of international law and with them the forms of provisional right have moved on since Kant.
[i] English translations of Kant’s texts throughout are cited from Mary J. Gregor ed (1996), Practical Philosophy (Cambridge: Cambridge University Press). Page numbers refer to the Akademie Ausgabe pagination.
[ii] Jürgen Habermas (1997), ‘Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Years’ Hindsight,’ in James Bohman and Matthias Lutz-Bachmann eds Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, Mass.: MIT Press) 115.
[viii] Available at The United Nations (Accessed 15 September 2013).
Article VI. — “No State at war with another shall adopt such modes of hostility as would necessarily render mutual confidence impossible in a future Peace; such as, the employment of Assassins (percussores) or Poisoners (venefici), the violation of a Capitulation, the instigation of Treason and such like”
According to Kant, “some confidence in the character of the enemy must remain even in the midst of war, as otherwise no peace could be concluded and the hostilities would degenerate into a war of extermination.” In other words, accepting the inevitability of war, following a code of conduct during armed conflict distinguishes legitimate from illegitimate warfare. Remarkably, Kant envisioned the heart of the modern laws of war, or jus en bello, now codified in the Geneva Conventions and their Protocols and further reflected in customary law. At the same time, neither Kant nor the authors of the Geneva Conventions envisioned how contemporary means and actors in armed conflicts have threatened the central efficacy of the normative framework for lawful combat. This brief essay suggests how the ideas embedded in Kant’s Preliminary Article 6 might be embellished to accommodate some verities of our contemporary world.
First, Kant and the jus en bello did not anticipate the emergence as a significant contemporary phenomenon asymmetric warfare perpetrated by non-state entities, including terrorist groups. Second, the laws of war do not for the most part reach the now-widespread use by sovereigns of non-uniformed personnel as surrogate fighters. Finally, the recent growth of jihadist violence shows that the Western jus en bello was rejected and the equally humane Islamic law of war hijacked by dissident insurgents bent on bastardizing Islam to justify their violence against civilians. While Kant could not foresee the late twentieth century divergence of Islam and western laws of war, the responsible States – western and Muslim-majority – are culpable in not assuring that harmonious principles of humanity in wartime were shared, understood, and practiced across cultures.
Does Law Matter in Wartime?
Cicero is credited with saying “silent enim leges inter arma”—in times of war the laws fall silent.[i] Cicero was correct, literally, but even in biblical times, when war was a quotidian occurrence, informal guidelines limited armed combat. Early Roman military codes recognized criminal offenses. Egypt agreed with neighboring states on standards for treating prisoners, and the Hindu Code from around 200 B.C. forbade some kinds of weapons.[ii] By the feudal period, knights and nobles practiced rules of chivalry, based on a duty to act honorably even in time of war. Throughout human history, however, the law has been reactive, catching up episodically to provide legal guidelines based on lessons learned from the last war. Yet Kant had the wisdom and judgment to see that law can and should embody our noblest objectives and serve to inspire the people to further its normative aims—in this instance serving humanitarian goals of protecting civilians from the ravages of war.
There remains great skepticism that law matters in regulating warfare. Evan after codes for the battlefield began to emerge in Europe in the sixteenth and seventeenth centuries, leading to the required return of prisoners in the 1648 Treaty of Westphalia, Clausewitz opined that the laws of war are “almost imperceptible and hardly worth mentioning.”[iii] Yet the laws remain the most hopeful instrument we have for retaining a civilization in the face of the so-called necessities of war.
States and their armies developed battlefield codes over time, and a customary law of war based on state practice emerged alongside the codes. After Kant’s death, by the mid-nineteenth century, the British Articles of War were codified, and the first significant American code was written by Francis Lieber for the eventually victorious Union forces. Lieber’s Instructions for the Government of Armies of the United States in the Field (1863) essentially codified what was then the customary law of war for soldiers fighting on the battlefield.[iv] The success of the Lieber Code is demonstrated by its adoption in similar forms in several countries in Europe, Russia, and Argentina. Meanwhile, the 1868 St. Petersburg Declaration Renouncing the Use in War of Certain Explosive Projectiles became the first multilateral treaty banning a particular weapon.
Following a signing ceremony in the Netherlands on 18 October 1907, the Hague Conventions Respecting the Laws and Customs of War on Land required state parties to “issue instructions to their armed land forces in conformity with the present convention.”[v] Another article in the same document made clear that the rules of the Convention apply only to wars between state parties, and yet another stipulation limited the Hague rules to state militaries, a subset of states’ nationals defined as “lawful combatants”—a category evolved in customary law from the pre-Middle Ages practice of treating as enemies all inhabitants of another state.[vi] Thus, over time the jus en bello developed from Clausewitz’s Eurocentric conception of war based on symmetric conflicts between state armies of roughly equal military strength and of comparable organizational structures.[vii]
As the rules evolved, the jus in bello prescribe rules for the conduct of military operations during armed conflict, including standards for the protection of civilians, civilian objects, and other protected entities. The rules humanize war by setting criteria and limits on such issues as who and what may be targeted, how targeting may be executed, the weapons that may be used, how prisoners of war and other detainees must be treated, and the rights and obligations of occupying forces. World Wars and myriad other military conflicts large and small occurred throughout the twentieth century. However, the legal regimes for limiting the use of force on the battlefields—the Hague and Geneva Conventions and their Protocols, some specific multilateral treaties, and emerging customary law—continued to lag behind changes in armed conflict.
Postmodern War: Asymmetric Warfare Waged by Non-State Actors
It has been evident at least since the biblical story of David and Goliath that military conflicts may be unequal or asymmetric. Yet the laws of war do little to accommodate the asymmetric form. Sixty years ago, following extensive revision to the Geneva Conventions, the decision makers and military leaders of the nations of the world agreed that the Common Articles codified in the revised 1949 Geneva Convention constituted the exclusive threshold criteria for triggering the laws of war. Under Geneva, there are two kinds of wars: interstate (or international) armed conflicts and intra-state (or internal) armed conflicts. The former invoke the full panoply of the laws of war, which in turn regulate the conduct of war (through the principles of distinction, proportionality, and military necessity); the latter do not trigger all the regulations for the conduct of war but provide limited humanitarian protections for civilians and those captured or detained.
The Geneva provisions fail to account for non-state fighters, first, by providing a regulatory scheme designed for wars between states, except for minimal protections for those involved in non-international armed conflicts that may include non-state belligerents. Second, the Geneva criteria for earning the status of a lawful combatant are defined on the model of the state soldier. Requirements include a responsible command structure, wearing a fixed insignia recognizable at a distance, carrying arms openly, and conducting operations in accord with international humanitarian law. One byproduct is that only persons meeting these criteria gain full prisoner of war (POW) protections under the Conventions. It is virtually impossible for non-state actors to meet these criteria and, thus, to become lawful combatants under the jus en bello. Because the laws of war include a “combatant privilege,” a form of legal immunity for acts that would be criminal if performed during peacetime, non-state actors may neither engage in lawful combat nor be its deliberate target.
The challenges posed to the laws of war emerged as weaker, non-state combatants use forbidden tactics to offset their military disadvantage, and as irregular warfare becomes a common means for weaker parties to achieve political goals that they could not accomplish through established channels. Because the Geneva Conventions and Protocols do not account for non-state groups waging transnational attacks or prolonged campaigns of terrorism, modern battlefields may lack enforceable codes of conduct. When defending states and victims on both sides of the conflict find themselves without rules for dealing with insurgent groups operating within civilian populations and using tactics that blur the lines between soldiers and civilians for their strategic or tactical ends, the negative consequences are felt by the most vulnerable.
Asymmetric warfare is a central feature of twenty-first century global affairs. By the turn of this century, some observers began to recognize, as did General Sir Rupert Smith, that instead of a “linear process” where “peace is understood to be an absence of war . . . we are in a world of constant confrontation.” In today’s wars, Smith opined, civilians “are part of the terrain of your battlefield . . . [and] war is directed against non-combatants.”[viii] Indeed, we live in an era of postmodern warfare. If modern war was interstate and typically large scale between professional state armies, postmodern warfare discounts the value of overwhelming force, traditional battlefield tactics, and even technological advances, and substitutes equally lethal, smaller scale, urban-based war among the civilian populations. Postmodern war can be just as significant strategically as modern war, and its effects on a political order just as profound. Insurgents, after all, reject the existing political order.[ix]
Existing legal frameworks are not sufficiently nuanced or nimble enough to accommodate postmodern conflict forms. For example, Protocol I of the Geneva Conventions forbids indiscriminate attacks, defined as “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”[x] Focusing on “military advantage” may be an insufficient marker in postmodern warfare. In insurgencies those in non-combat roles may be as integral to the success of the insurgents’ cause as the fighters. Those who provide shelter, cook food, deliver messages, and the like create for the counterinsurgency force a dilemma, where the need to separate insurgents from the population requires dealing with civilians using military force. Is a civilian internet service provider (ISP) or radio station that spreads the insurgents’ propaganda directly participating in hostilities under the laws of war? Probably not. Are its personnel subject to targeting? To arrest and detention? To what extent should the chance that targeting or arresting the ISP or radio station owner will inflame the insurgency factor into making the operational decisions?
The trend in postmodern warfare has been for these adaptations to traditional jus en bello to take the form of operational law, or policy add-ons to the laws of war. Indeed, operational law has outpaced treaty-based legal developments and case law. It is not surprising that commanders in the field and their legal advisers would be the first to come to grips with the need for a reshaped legal paradigm in combating postmodern warfare. Nor has it been unhealthy for the reshaping to take the form of operational law standards. Going forward, however, nation states should assume full accountability for reshaping the framework for conducting postmodern warfare and adopt a new set of principles and guidelines, through states’ political processes and at their highest levels.
In asymmetric conflicts between states and non-state entities, is there a middle ground between law enforcement and armed conflict regimes to guide states and to determine when a state is justified in using force? For states, we offer combatants POW status, which is difficult to apply to non-state groups due to definitional conundrums in the laws of war. Likewise, the war crimes regime serves as a negative incentive, though it is not strong enough to deter fanatics. In creating incentives for non-state entities to buy into the laws of war system, are there innovative ways to structure legal relationships in asymmetric war? Are there other incentives—to punish non-compliance, and to reward compliance?
Regulating the New Warriors: Insurgents, Terrorists, and Contractors
The laws of war and accompanying policies should be clarified to take into account basic definitional dilemmas that arise in asymmetric conflicts. The most complex issue involves defining the terms ‘combatant’ and ‘civilian.’ These status issues, in turn, lead to critical examination of what is meant by such related designations as ‘lawful combatant,’ ‘unlawful combatant,’ and ‘taking an active part in hostilities.’ Should the law classify terrorists as combatants, civilians, or neither? What about insurgents? If the law classifies these actors as combatants or some third category, is mere membership in a terrorist organization or insurgent group enough to identify an individual with an organization that acts in violent or destructive ways? Should we give terrorists POW privileges? These status designation issues call for exercise of the fundamental conceptual tools needed to adapt the law to the current conflict environment. How may we improve upon some of the open-ended, subjective, or historically outdated standards that underlie humanitarian law? For example, it is very likely that more concrete guidance can and should be provided on how to carry on a conflict in and around protected sites. Likewise, proportionality in asymmetric warfare could also be more clearly spelled out by establishing a set of criteria or pre-conditions for a proportionate military response. More controversially, should the threshold distinction between “international” and “non-international” armed conflict be delinked from the question of state status?
What should be the roles and legal status of new nontraditional actors—private security companies, child soldiers, NGOs, among others—that increasingly play a prominent role on the battlefield in asymmetric conflicts and in post-conflict settings. How the law takes into account the role of private security contractors in the asymmetric setting has become a high-profile and controversial issue since the 2007 Baghdad incident at Nisour Square where contractor security personnel shot unarmed civilians. Military contractors in Iraq and Afghanistan have played much more than support roles and have been present in battle zones, especially as downsized militaries task them with broader responsibilities. Likewise, military contractors have played a significant role in interrogation in ways that may skirt law of war provisions. What legal obligations and responsibilities do private contractors have, what protections do they deserve under humanitarian law, and what are the obligations of states that hire them regarding their conduct? Since being inside or outside the strictures and protections of the laws of war depends largely on these threshold determinations of armed conflict type and combatant status, working toward modifying or replacing traditional categories with ones that can reach some non-state actors may also very well include contemplating the range of new actors on the battlefield.
Jihadists Hijacking Islam
People have always killed other people in the name of God, although closer examination of the religious wars reveals that the causus belli were in fact secular. Kant undoubtedly recognized that the interplay of religion and culture plays an important role in establishing norms for regulating warfare and limiting its effects on victims. Yet Kant did not anticipate the contemporary hijacking of an extremist interpretation of Islam and the rejection of western laws of war in furtherance of the extremists’ political objectives.
Since Kant’s time, religion and culture have continued as major factors in national and international security. As religious and cultural practices transcend borders, their interplay creates dynamic contexts that shape how questions of conflict and peace are understood, practiced, and valued. Humanitarian attempts to regulate conduct in war has strong ties to the ethical philosophies that comprise post-Enlightenment humanism—the intrinsic value of human life, the role of equality and freedom in rights and dignity, and the importance of reason and conscience. Indeed, the jus en bello is a form of applied humanities, where cross-cultural understanding is necessary for effective policy creation and implementation.
Islam and Islamic leaders had a significant though mostly unacknowledged role in the early development of the jus en bello and the aggregate legal corpus of customary rules and treaties that regulate and limit the conduct of warfare between states. From the entry of the Ottoman Empire into the European legal system in 1856 through the first Hague Peace Conference in 1899, Islam heavily influenced the growing internationalization and humanization of the European laws and customs of war. Historians find this influence in Hugo Grotius’s works on the law of combat, as well as Baron de Taube’s 1926 course at The Hague that noted Islamic doctrine in the chivalric codes of the Crusades which were then passed on to the Christian church and into the modern laws of war. The role of Turkey and Persia in ratifying the 1864 Geneva Convention, Turkey’s presence at the 1868 St. Petersburg Conference, and the crisis in the Balkans led to the recognition that the laws of war had to abandon their previously Christian doctrine. As Muslims and Islamic culture presented a classic “other” to be measured against European Christian states during this early period, the entry of Islamic states into the European system, forced a re-definition of the laws of war into secular terms. The Hague and Geneva Conventions and even the 1977 Protocol Additional to the Geneva Conventions continued to be influenced by Islamic participants and concepts.
By the 1970s, however, the Arab-Israeli conflict and various armed conflicts in colonial states brought signs of shifting attitudes among some Islamic states and Muslim groups toward western laws of war. Skepticism about the jus en bello grew, and some began to consider Islamic law as an alternative. Following the Islamic Revolution in Iran, the Iran-Iraq war of 1980-1988, and the gender controversy in negotiating the Rome Statute of the International Criminal Court, some Muslim-majority states and new non-state groups openly rejected the western laws of war in favor of a radical form of Islam in shaping their approaches to war. Instead of weakening the military forces of the enemy, the objective in war became to manifest one’s faith through the spilling of one’s own, or an infidel’s, blood. As the growth of radical jihadist terrorism directed at states and their citizens came to dominate discourse in the 1990s and especially since September 11, discussion about Islam as a source of law of war principles virtually disappeared.
Based on their disparate heritage, western laws of war and Islamic law differ fundamentally in their methods and sources of legitimacy and authority. Do fighters and those who make policy decisions leading to armed conflict owe their fealty to laws enacted by secular institutions, or to Allah? Are soldiers involved in a religious and identity-defining process? To what extent are the jus en bello and Islamic law harmonious on such core principles as combatant status, protection of civilians, treatment of detainees and prisoners, proportionality, reciprocity, perfidy, and protection of property? While it is true that diverse Islamic traditions and methods of reasoning from authoritative sources in relation to armed conflict are now well known, our understandings of the relationship between Islam and western laws of war is limited. How might the shared history and conceptual landscape between the jus en bello and Islam provide the basis for a cooperative enterprise between the traditions that could address present gaps in the law, such as the lack of standards for dealing with irregular armies and the inability of the law to accommodate asymmetric forms of conflict by non-state entities against states. To be sure, making progress in exploring commonalities in western and Islamic laws of war will rely on what the eighth century jurist al-Awzai emphasized: approaching the law as a “living tradition,” the uninterrupted and intergenerational practice of adapting approved legal precepts to contemporary circumstances. Fortunately, western jus en bello depends heavily on the very same organic legal tradition. It will thus be essential for twenty-first century reformers to abandon the tendency to reduce Western and Islamic legal traditions to static or monolithic constructs by recognizing each as complex, dynamic, and plural. Western and Muslim-majority states shoulder the pressing burden of publicly endorsing and then working to implement shared humanitarian codes of conduct during wartime that reflects the best of our shared traditions.
[i] M. Tullius Cicero, The Speech of M. T. Cicero in Defence of Titus Annius Milo, The Orations of Marcus Tullius Cicero, literally translated by C. D. Yonge (1891), (London: George Bell & Sons). For the original Latin, see M. Tullius Cicero. M. Tulli, Ciceronis Orationes: Recognovit breviqve adnotatione critica instrvxit Albertus Curtis Clark Collegii Reginae Socius. (Albert Curtis Clark. Oxford. e Typographeo Clarendoniano, 1918). Scriptorum Classicorum Bibliotheca Oxoniensis.
of the Union and Confederate Armies, Series III, V3, 148-164 (Washington, D.C., Government Printing Office).
[v] Article 1, Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, http://www.icrc.org/ihl.nsf/FULL/195
[vi] Article 2, Convention (IV) respecting the Laws and Customs of War on Land and Article 1, Annex to the Convention: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 1, http://www.icrc.org/ihl.nsf/FULL/195
Cross, 864 (December), 720.