If, like the teacher of law, I abstract from all the material of public law (i.e., abstract from the various empirically given relationships of men in the state or of states to each other), there remains only the form of publicity, the possibility of which is implied by every legal claim, since without it there can be no justice (which can only be conceived as publicly known) and thus no right, since it can be conferred only in accordance with justice. Every legal claim must be capable of publicity. Since it is easy to judge whether it is so in a particular case, i.e., whether it can be compatible with the principles of the agent, this gives an easily applied criterion found a priori in reason, by which the falsity (opposition to law) of the pretended claim (praetensio iuris) can, as it were, be immediately known by an experiment of pure reason.
Having set aside everything empirical in the concept of civil or international law (such as the wickedness in human nature which necessitates coercion), we can call the following proposition the transcendental formula of public law: "All actions relating to the right of other men are unjust if their maxim is not consistent with publicity."
This principle is to be regarded not merely as ethical (as belonging to the doctrine of virtue) but also as juridical (concerning the right of man). A maxim which I cannot divulge without defeating my own purpose must be kept secret if it is to succeed; and, if I cannot publicly avow it Without inevitably exciting universal opposition to my project, the necessary and universal opposition which can be foreseen a priori is due only to the injustice with which the maxim threatens everyone. This principle is, furthermore, only negative, i.e., it only serves for the recognition of what is not just to others. Like an axiom, it is indemonstrably certain and, as will be seen in the following examples of public law, easily applied.
1. In the law of the state (ius civitatis) or domestic law, there is a question which many hold to be difficult to answer, yet it is easily solved by the transcendental principle of publicity. The question is: "Is rebellion a legitimate means for a people to employ in throwing off the yoke of an alleged tyrant (non titulo, sed exercitio talis)?" The rights of the people are injured; no injustice befalls the tyrant when he is deposed. There can be no doubt on this point. Nevertheless, it is in the highest degree illegitimate for the subjects to seek their rights in this way. If they fail in the struggle and are then subjected to severest punishment, they cannot complain about injustice any more than the tyrant could if they had succeeded.
If one wishes to decide this question by a dogmatic deduction of legal grounds, there can be much arguing pro and con; only the transcendental principle of the publicity of public law can free us of this prolixity. According to this principle, a people would ask itself before the establishment of the civil contract whether it dare publish the maxim of its intention to revolt on occasion. It is clear that if, in the establishment of a constitution, the condition is made that the people may in certain cases employ force against its chief, the people would have to pretend to a legitimate power over him, and then he would not be the chief. Or if both are made the condition of the establishment of the state, no state would be possible, though to establish it was the purpose of the people. The illegitimacy of rebellion is thus clear from the fact that its maxim, if openly acknowledged, would make its own purpose impossible. Therefore, it would have to be kept secret.
This secrecy, however, is not incumbent upon the chief of the state. He can openly say that he will punish every rebellion with the death of the ringleaders, however much they may believe that he was the first to overstep the basic law; for when he knows he possesses irresistible power (which must be assumed to be the case in every civil constitution, because he who does not have enough power to protect the people against every other also does not have the right to command them), he need not fear vitiating his own purpose by publishing his maxims. If the revolt of the people succeeds, what has been said is still quite compatible with the fact that the chief, on retiring to the status of a subject, cannot begin a revolt for his restoration but need not fear being made to account for his earlier administration of the state.
2. We can speak of international law only under the presupposition of some law-governed condition, i.e., of the external condition under which right can really be awarded to man. For, being a public law, it contains in its very concept the public announcement of a general will which assigns to each his rights, and this status iuridicus must result from some compact which is not founded on laws of compulsion 'as in the case of the compact from which a single state arises). Rather, it must be founded on a free and enduring association, like the previously mentioned federation of states. For without there being some juridical condition, which actively binds together the different physical or moral persons, there can be only private law; this is the situation met with in the state of nature. Now here there is a conflict of politics with morality (regarding the latter as a science of right), and the criterion of publicity again finds an easy application in resolving it, though only if the compact between the states has been made with the purpose of preserving peace between them and other states, and not for conquest. The following cases of the antinomy between politics and morality occur (and they are stated with their solution).
a) "If one of these states has promised something to the other, such as aid, cession of some province, subsidies, and the like, and a case arises where the salvation of the state depends upon its being relieved of its promise, can it then consider itself in two roles: first as a sovereign (as it is responsible to no one in the state), and second as merely the highest official (who must give an account to the state)? From this dual capacity it would follow that in its latter role the state can relieve itself of what it has obliged itself to do in its former role." But if a state (or its chief) publicizes this maxim, others would naturally avoid entering an alliance with it, or ally themselves with others so as to resist such pretensions. This proves that politics with all its cunning would defeat its purpose by candor; therefore, that maxim must be illegitimate.
b) "If a neighboring power becomes formidable by its acquisitions (potentia tremenda), and thus causes anxiety, can one assume because it can oppress that it will? And does this give the lesser power, in union with others, a right to attack it without having.first been injured by it?" A state which made known that such was its maxim would produce the feared evil even more certainly and quickly, for the greater power would steal a march on the smaller. And the alliance of the smaller powers would be only a feeble reed against one who knew how to apply the maxim divide et impera. This maxim of political expediency, if made public, would necessarily defeat its own purpose, and hence it is illegitimate.
c) "If a smaller state is so situated as to break up the territory of a larger one, and continuous territory is necessary to the preservation of the larger, is the latter not justified in subjugating the smaller and incorporating it?" We easily see that the greater power cannot afford to let this maxim become known; otherwise the smaller states would very early unite, or other powers would dispute the prey, and thus publicity would render this maxim impracticable. This is a sign that it is illegitimate. It may be unjust to a very high degree, for a small object of injustice does not prevent the injustice from being very great.
3. I say nothing about the law of world citizenship, for its analogy with international law makes it a very simple matter to state and evaluate its maxims.
Thus in the principle of incompatibility between the maxims of international law and publicity we have a good distinguishing mark for recognizing the nonconformity of politics to morality (as a, science of right). Now we need to know the condition under which these maxims, agree with the law of nations, for we cannot infer conversely that the maxims which bear publicity are therefore just, since no one who has decidedly superior power needs to conceal his plans. The condition of the possibility of international law in general is this: a juridical condition must first exist. For without this there is no public law, since all law which one may think of outside of this, in the state of nature, is merely private law. We have seen that a federation of states which has for its sole purpose the maintenance of peace is the only juridical condition compatible with the freedom of the several states. Therefore the harmony of politics with morals is possible only in a federative alliance, and the latter is necessary and given a priori by the principle of right. Furthermore, all politics has for its juridical basis the establishment of this harmony to its greatest possible extent, and without this end all its sophisms are but folly and veiled injustice. This false politics outdoes the best Jesuit school in casuistry. It has reservatio mentalis, wording public compacts with such expressions as can on occasion be interpreted to one's own advantage (for example, it makes the distinction between status quo de fait and de droit). It has probabilism, attributing hostile intentions to others, or even making probabilities of their possible superior power into legal grounds for destroying other, peaceful states. Finally, it has the peccatum philosophicum (peccatillum, bagatelle), holding it to be only a trifle when a small state is swallowed up in order that a much larger one may thereby approach more nearly to an alleged greater good for the world as a whole.1
The duplicity of politics in respect to morality, in using first one branch of it and then the other for its purposes, furthers these sophistic maxims. These branches are philanthropy and respect for the rights of men; and both are duty. The former is a conditional duty, while the latter is an unconditional and absolutely mandatory duty. One who wishes to give himself up to the sweet feeling of benevolence must make sure that he has not transgressed this absolute duty. Politics readily agrees with morality in its first branch (as ethics) in order to surrender the rights of men to their superiors. But with morality in the second branch (as a science of right), to which it must bend its knee, politics finds it advisable not to have any dealings, and rather denies it all reality, preferring to educe all duties to mere benevolence. This artifice of a secretive politics would soon be unmasked by philosophy through publication of its maxims, if they only dared to allow the philosopher to publish his maxims.
In this regard I propose another affirmative and transcendental principle of public law, the formula of which is:
"All maxims which stand in need of publicity in order not to fail their end, agree with politics and right combined."
For if they can attain their end only through publicity, they must accord with the public's universal end, happiness; and the proper task of politics is,to promote this, i.e., to make the public satisfied with its condition. If, however, this end is attainable only by means of publicity, i.e., by removing all distrust in the maxims of politics, the latter must conform to the rights of the public, for only in this is the union of the goals of all possible.
The further development and discussion of this principle I must postpone to another occasion. But that it is a transcendental formula is to be seen from the exclusion of all empirical conditions (of the doctrine of happiness) as material of the law, and from the reference it makes to the form of universal lawfulness.
If it is a duty to make real (even if only through approximation in endless progress) the state of public law, and if there is well-grounded hope that this can actually be done, then perpetual peace, as the condition that will follow what has erroneously been called "treaties of peace" (but which in reality are only armistices), is not an empty idea. As the times required for equal steps of progress become, we hope, shorter and shorter, perpetual peace is a problem which, gradually working out its own solution, steadily approaches its goal.
1. The precedents for such maxims may be seen in Counselor Garve's treatise, On the Union of Morality with Politics (1788). This worthy scholar admits in the beginning that he is not able to solve the problem completely. But to approve of this union while admitting that one cannot meet all objections which may be raised against it seems to show more tolerance than is advisable toward those who are inclined to abuse it.
Main Document, "Perpetual Peace"
First Supplement, "Secret Article for Perpetual Peace"
Second Supplement, "Secret Article for Perpetual Peace"
Appendix I, "On the Opposition Between Morality and Politics With Respect to Perpetual Peace"
Text Version | Liberty
Library | Constitution Society