4. Radical Nature

This reveals to us a strange and unexpected pattern in human affairs (such as we shall always find if we consider them in the widest sense, in which nearly everything is paradoxical). A high degree of civil freedom seems advantageous to a people’s intellectual freedom, yet it also sets up insuperable barriers to it. Conversely, a lesser degree of civil freedom gives intellectual freedom enough room to expand to its fullest extent.

—Immanuel Kant, “What Is Enlightenment?”

One might wonder: Where is politics according to Kant? What is its place in the great rational systematics?

Neither in the Architectonic of the first Critique, nor in the preface to the Groundwork for the Metaphysics of Morals, nor in the introduction to the third Critique does Kant make an explicit place for politics. Recall that the great division of the system (once logic has been separated out) into philosophy of nature and moral philosophy (CPR, A840/B868) sets up the conflict we will be examining: The political moralist will place politics on the side of nature; the moral politician, in principle at least, on the side of morality. We might expect that the introduction to the Metaphysics of Morals would decide, when it makes a distinction, within moral laws, between juridical laws and properly moral laws (the distinction that will motivate the division into a Doctrine of Right and a Doctrine of Virtue); but we shall see that only the political moralist thinks politics is entirely on the side of right, because the mere legality of an action decides nothing as to its political morality, and this is also the case in what Kant calls moral anthropology. Especially in his doctrinal texts, Kant does tend to try to keep politics in the realm of right. But we shall see that he regularly recognizes that politics is political only to the extent it does not remain simply in that realm. Which is why politics finds a certain truth in illegality, and especially in the absolute illegality of revolution.

So to the question “Where is politics?” we reply (because Kant does not reply): On the frontier, or, rather, in the frontier, in the transitional spaces, between the great divisions of the system. As politics in Kant’s descriptions depends on a remainder of violent nature inscribed along frontiers, a remainder that cosmopolitanism does not absorb, politics will be inscribed as a frontier in Kant’s text every time he draws a frontier in it. “Political” will be, then, the frontier between nature and Sitten, between critique and doctrine, between understanding and reason, between concept and idea, between determinative judgment and reflective judgment, etc.

The frontier in its “proper” sense subsists, then, in international and even cosmopolitan right, whether as the most visible sign of the evil rooted in mankind or as the index of a vital tension in the equilibrium of nations. This peaceful equilibrium of States, which, as we saw, becomes the substitute telos in the face of the mortal perspective of a World State, may be based on a federation and, therefore, not be quite the same as a simple “balance of power.” But it seems that power and balance there still must be, and, we might be tempted to say against Kant’s explicit intention, risk of catastrophic collapse of the sort that appears at the end of the “Theory and Practice” text:

Nowhere does human nature appear less admirable than in the relationships which exist between peoples. No state is for a moment secure from the others in its independence and its possessions. The will to subjugate the others or to grow at their expense is always present, and the production of armaments for defence, which often makes peace more oppressive and more destructive of internal welfare than war itself, can never be relaxed. And there is no possible way of counteracting this except a state of international right [einem allgemeinen Völkerstaat], based upon enforceable public laws to which each state must submit (by analogy with a state of civil or political right among individual men). For a permanent universal peace by means of a so-called European balance of power is a pure illusion, like Swift’s story of the house which the builder had constructed in such perfect harmony with all the laws of equilibrium that it collapsed as soon as a sparrow alighted on it.1 (KPW, 91–92)

How are we to understand Kant’s hesitations around cosmopolitanism? Reading these texts, we do not really know what to think about it anymore. On the one hand, it must be admitted as the only telos worthy of reason, like a state that one ought to realize and that providential nature will realize even against our will. On the other hand, we have to see in it the greatest danger, because a World State could only be a monarchy that would inevitably become despotic and fall into anarchy and renewed violence. And if we fall back on the idea of a federation of states in view of peace, no longer as the preliminary sketch of what a true cosmopolitan State of the World will be, not even as its negative surrogate but as the only way to realize perpetual peace, between the state of nature and the peace of the graveyard, then we must accept that cosmopolitan right be restricted and that tension and danger, and therefore nature and frontiers, be maintained, in a precarious equilibrium that a sparrow always might destroy in truly catastrophic fashion.

The frontier on which we are perched here, more or less balanced, more or less exposed to danger, is most obviously the frontier that passes between morality and politics. Or rather, given that we are claiming that politics is itself a frontier, between morality and mechanical necessity. This means that we are situated at the center of the great Kantian division between mechanism and freedom, necessity and obligation, and this is why Kant will add a long appendix (Anhang) to the Perpetual Peace text to demonstrate that there can be no conflict between politics and morality, insofar as the former is merely the “applied branch” (KPW, 116) of the latter. It is indeed a question of frontiers:

The frontier-god [der Grenzgott] of morality does not yield to Jupiter, the frontier-god of violence [Gewalt], for even Jupiter is still subject to fate. In short, reason is not sufficiently enlightened to discover the whole series of predetermining causes which would allow it to predict accurately the happy or unhappy consequences of human activities as dictated by the mechanism of nature; it can only hope that the result will meet with its wishes. But reason at all times shows us clearly enough what we have to do in order to remain in the paths of duty, as the rules of wisdom require, and thus shows us the way towards our ultimate goal [Endzweck]. (KPW, 116; tr. mod.)

The fact remains that these relations are extremely complex. We thought we had understood that there could be no disagreement between politics and morality to the extent that they were respectively practical and theoretical, but the topography in question turns out to be more complicated. Kant has just posited an absolute superiority of morality over politics; so it is not that “honesty is the best policy” (it often is not) but rather that “honesty is better than any policy” (KPW, 116), which complicates any theory/practice distinction. For even if morality is theoretical, it is theoretical only by being immediately practical also (the moral law is a chimera if it is not in principle applicable, practicable). And if politics is assuredly practical, it must not for all that simply take morality to be its theory. Because the practical man (der Praktiker) can very well recognize morality qua theory, and even as practical theory (recognize, that is, that we can do what we ought to do [selbst bei eingeräumtem Sollen und Können]), but still object that we do not want to do what we ought and can do (namely, that which will lead to perpetual peace). We would then have to admit that right (public right, at any rate) rests on a coup de force (because the people do not want right), which immediately opens a space between right and politics, theory and practice, and seems to make politics into a domain the theory of which cannot be fully theoretical but which must accept that it draws its maxims from the real world as it is. This argument gives rise to the political moralist to whom Kant, in a famous argument, is going to oppose the moral politician. The point is not to separate morality and politics but to separate two ways of conceiving of their relation. As we shall see, Kant has the greatest difficulty drawing the frontier (necessary for all this thinking) between these two positions.

Let me briefly summarize what distinguishes these two characters. The political moralist sees the world as ruled purely by mechanical force-relations, or as a nature. It follows that for him politics consists in using this mechanism to govern people with a view to defined goals (which might even be praiseworthy goals, even perpetual peace itself) and that morality is essentially just a rhetoric designed to facilitate this mechanical activity. The model for the political moralist is, curiously enough, the professional jurist (i.e., one for whom the law is a career, work [Handwerk] and not a question of legislation—it is not easy to imagine a professional legislator . . .), who leaves his profession to enter politics. As such, the jurist is concerned not with legislation but with the application of existing laws, whatever they be. This application is, then, mechanical in that the laws are being thought of on the model of the laws of the physical world.2 Kant has nothing against this, to the extent that, as we have seen, civil laws are necessarily accompanied by force (without which they would not be applicable in the face of the opposite force—natural violence—that humans put up against the law, qua natural and therefore selfish individuals) and, consequently, function like a nature ruled mechanically. But those jurists who then feel justified in leaving this quasi-mechanical sphere to reflect on law in general, to cross the frontier between the administrative application of the law and politics proper,

cannot take this step except in a spirit of chicanery, for they will follow their usual procedure of applying despotically formulated coercive laws in a mechanical manner, even in a sphere where the concepts of reason only allow for lawful coercion, in keeping with the principles of freedom, which alone makes possible a rightfully established political constitution. (KPW, 119)

The political moralist will set goals and then seek technical means to reach them; he knows in advance where he wants to go and then, taking account of empirical circumstances (including what he believes he knows about human nature and the current and historical practice of politics), calculates how to get there, all the while inventing a pragmatic morality to justify himself. The political moralist makes use of shady practices (Praktiken: underhanded methods) rather than true praxis (Praxis).

Over against the political moralist, then, the moral politician. One senses that Kant will have a hard time defining him: If he is too moral, we will no longer be in the domain of politics, which is what we are discussing; if he is too political, we will fall back into natural mechanism. The moral politician believes that “the principles of political expediency” (“die Prinzipien der Staatsklugheit,” more literally: the principles of political prudence), which are not the same as moral principles, can be reconciled with morality, which has an absolute priority. A moral politics cannot be simply moral but must be moral above all else. It cannot ignore the quasi-mechanical world of existing laws but must not think about it either. It must not treat the practical world as a mechanical world but must treat it as if it were a mechanical world, or rather as an as-if mechanical world.

To make the separation he needs (and in so doing, because this is crucial, “ensure that practical philosophy is at one with itself”), Kant takes up again from a great height a distinction that rules over his whole philosophy—namely, the distinction between the material and the formal:

To ensure that practical philosophy is at one with itself, it is first necessary to resolve the question of whether, in problems of practical reason, we should begin with its material principle, i.e. its end, as an object of the will, or with its formal principle, i.e. the principle which rests on man’s freedom in his external relations [äussern Verhaltnis] and which states: “Act in such a way that [handle so, dass] you can wish your maxim to become a universal law (irrespective of what the end in view may be).” (KPW, 121–22)

On the side of the material principle, we have the political moralist, who has an end in view (perhaps even a praiseworthy end) and who calculates according to mechanical laws how to get to it; on the side of the formal principle (which is really just the categorical imperative), we have the moral politician. This principle may well (and, in fact, must) encourage the advent of perpetual peace but must not be invoked as though perpetual peace were its goal. But there is a paradox here that is going to trouble the distinction between politics and morality and, therefore, between political moralist and moral politician: It turns out that the moral politician, who does not have his eyes fixed on the goal (perpetual peace), is better at moving toward that goal than the other guy, who does not take his eyes off it. The reason is that the political moralist, for whom bringing about perpetual peace is a technical task and who needs to make crafty prudential calculations about natural mechanism, is unable to ground his calculus in necessity. History gives examples of all sorts of political arrangements giving rise to all sorts of results, in fact. Where we thought we might be in the domain of necessity (nature envisaged as a mechanism), we find ourselves in the domain of contingency and uncertainty, and where we might have thought we were far from reality, in the domain of pure morality, we are apparently, and a little magically, more realistic. The reason for this (although Kant does not lay it out in this way) is that the position taken influences the way things turn out. The political moralist, just by trying to calculate according to natural mechanism, in fact breaks that mechanism, whereas the moral politician, who has no regard for the mechanics of it, in reality favors the goal he does not have in view but that he will achieve as though it were a bonus prize:

For morality, with regard to its principles of public right (hence in relation to a political code which can be known a priori), has the peculiar feature that the less it makes its conduct depend upon the end it envisages (whether this be a physical or moral advantage), the more it will in general harmonise with this end. And the reason for this is that it is precisely the general will [allgemeine Wille] as it is given a priori, within a single people or in the mutual relationships of various peoples, which alone determines what is right among men. But this union of the will of all [diese Vereinigung des Willens aller], if only it is put into practice in a consistent way, can also, within the mechanism of nature, be the cause which leads to the intended result and gives effect to the concept of right. (KPW, 123)3

The very fact of looking anywhere but at the goal can become a cause for the goal to be realized. And conversely, for the theory of the political moralists, who attempt to show that the mechanical behavior of mankind in society outplays moral goals:

Such theories are particularly damaging, because they may themselves produce the very evil they predict.4 For they put man into the same class as other living machines, which only need to realise consciously that they are not free beings for them to become in their own eyes the most wretched of all earthly creatures. (KPW, 123)

The moral politician, then, who is not concerned about the efficacy of his position, is by that very fact more efficacious than the efficacy man, the political moralist. Above all do not look where we are going, and we will get there all the sooner. The natural mechanism cannot fail to mislead you if you rely on it but will serve you if you do not think about it. Think not about what you want to bring about, because nature will not help you, but about what you ought to bring about, independently of any realism, and, voilà, it will get done thanks to this same natural mechanism. That is the problem of political wisdom (Staatsweisheitproblem) that characterizes the moral politician, whereas the political moralist is concerned with mere political prudence (Staats-Klugheitproblem).

Let’s pause for a moment over this value of prudence, Klugheit. Kant’s whole moral philosophy is based on excluding it, apparently without appeal. For example, in the first Critique:

In the doctrine of prudence the unification of all ends that are given to us by our inclinations into the single end of happiness and the harmony of the means for attaining that end constitute the entire business of reason, which can therefore provide none but pragmatic laws of free conduct for reaching the ends recommended to us by the senses, and therefore can provide no pure laws that are determined completely a priori. (CPR, A800/B828)

And the second Critique makes of prudence the very mark of what is most clearly opposed to morality—namely, self-love: Following the maxims of prudence leads one to seek one’s personal happiness rather than follow universal reason. To ground morality in prudence would ruin its simplicity and accessibility to all:

The maxim of self-love (prudence) merely advises; the law of morality commands. But there is a great difference between that which we are advised to do and that to which we are obligated.

What is to be done in accordance with the principle of the autonomy of choice is seen quite easily and without hesitation by the most common understanding; what is to be done on the presupposition of heteronomy of choice is difficult to see and requires knowledge of the world; in other words, what duty is, is plain of itself to everyone, but what brings true lasting advantage, if this is to extend to the whole of one’s existence, is always veiled in impenetrable obscurity, and much prudence is required to adapt the practical rule in accordance with the ends of life even tolerably, by making appropriate exceptions. But the moral law commands compliance from everyone, and indeed the most exact compliance. Appraising what is to be done in accordance with it must, therefore, not be so difficult that the most common and unpracticed understanding should not know how to go about it, even without worldly prudence. (CPrR, 33)

The fact remains—and again it is Epicurus who comes along to trouble Kant’s thinking—that it is not impossible that prudence might encourage us to choose the moral law, although the moral law ought to be its own motive:

Now, so many charms and attractions of life may well be connected with this incentive that even for their sake along the most prudent choice of a reasonable Epicurean, reflecting on the greatest well-being of life, would declare itself for moral conduct; and it can even be advisable to connect this prospect of a cheerful enjoyment of life with that motive which is supreme and already sufficiently determining of itself; but this connection should be made only to counterbalance the allurements that vice does not fail to display on the opposite side, and not so as to place in this the proper moving force, not even the smallest part of it, when it is a question of duty. For that would be tantamount to wanting to taint the pure moral disposition in its source. The majesty of duty has nothing to do with the enjoyment of life; it has its own law and also its own court, and even though one might want to shake both of them together thoroughly, so as to give them blended, like medicine, to the sick soul, they soon separate of themselves; if they do not, the former will effect nothing at all, and though physical life might gain some force, the moral life would fade away irrecoverably. (CPrR, 75)

So that prudence, which defines Epicurean morality (“for the [Epicurean], prudence was equivalent to morality” [CPrR, 93; see too CPrR, 106–7n]) becomes the touchstone for the crucial distinction between self-love and morality, a frontier question: “So distinctly and sharply drawn are the boundaries of morality and self-love that even the most common eye cannot fail to distinguish whether something belongs to the one or the other” (CPrR, 33). So not only is there a clear-cut frontier between prudence and morality, but everyone immediately sees that there is; it is impossible to be mistaken about this unless one’s head is muddled by the schoolmen to the point that one has become insensible to the heavenly voice of morality. And this is how our appendix takes things up again from the beginning:

Hence there can be no conflict between politics, as an applied branch of right, and morality, as a theoretical branch of right (i.e. between theory and practice); for such a conflict could occur only if morality were taken to mean a general doctrine of prudence [allgemeine Klugheitslehre], i.e. a theory of the maxims by which one might select the most useful means of furthering one’s own advantage—and this would be tantamount to denying that morality exists. (KPW, 116)5

So nothing is clearer or more crucial for Kant than this distinction between morality and prudence.6 And yet (perhaps this is precisely the mark of politics), in this same appendix this crucial distinction will start to become problematic. For in the passage that introduces our two characters, and that we have already quoted, Kant says the moral politician is the one who “conceives of the principles of political prudence [Staatsklugheit] in such a way that they can co-exist with morality” (KPW, 118). One might perhaps see in the hyphen added when the term reappears in the passage we are now quoting (Staats-Klugheitproblem) a clarification on Kant’s part, wishing perhaps, after describing the “practices” of the political moralist, to give a more restrictive determination of the term, having initially used it in a broader sense in which it is not excluded that it be compatible with morality. But we shall see that this uncertainty shakes, however slightly, the watertight nature of the distinction between political moralist and moral politician. Because this happy situation, according to which the best politics would be morality itself (Kant’s motto for the moral politician is “Seek ye first the kingdom of pure practical reason and its righteousness, and your object [the blessing of perpetual peace] will be added unto you” [KPW, 123]), is not without its complications. For, even if prudence is firmly placed on the side of the political moralist, the moral politician has to appeal to it in turn: the advantage of political wisdom is that it “leads straight to its goal [führt gerade zum Zweck]” (KPW, 122), but by that very fact runs the risk of going to its goal too fast, in a precipitation that can only be violent because it is too direct. Moral zeal must, then, be restrained, and this is done not exactly by returning to prudence but by remembering prudence: “leads straight to its goal, so long as we prudently remember [doch mit der Erinnerung der Klugheit] that it cannot be realized by violent and precipitate means [ihn nicht übereilterweise mit Gewalt herbeizuziehen], but must be steadily approached as favourable opportunities present themselves [sondern sich ihm nach Beschaffenheit der günstigen Umstände unablässig zu nähern]” (KPW, 122).7

So the moral politician must not be simply or purely moral, because being purely moral would mean being too moral (so to speak, because that is hard to reconcile with a thinking of unconditional morality), given that here morality, in what pushes it to excess, risks falling into the very violence it is supposed to avoid. Just as perpetual peace always might be brought about in the worst violence (the soulless despotism that falls back into natural anarchy; the peace of the graveyard), the (overly) moral politician risks trying to impose morality now, without taking into account the natural contingencies that must de facto delay the advent of morality in politics. Perpetual peace is good, but to get it one must wait, and wait more specifically for natural contingencies to lend themselves to it, again by chance. With luck, one can be moral in politics. This was already a problem in the initial statement of the principle of the moral politician, which immediately blurs the distinction it is trying to establish:

The moral politician will make it a principle that, if any faults which could not have been prevented are discovered in the political constitution or in the relations between states, it is a duty, especially for heads of state, to see to it that they are corrected as soon as possible; it should be ensured that these political institutions are made to conform to natural right, which stands before us as a model in the idea of practical reason, and this should be done even if selfish interests have to be sacrificed. It would be contrary to all political prudence, which in this case agrees with morality [aller, hierin mit der Moral einhelligen, Staatsklugheit zuwider ist], to destroy any of the existing bonds of political or cosmopolitan union before a better constitution has been prepared to take their place. And while it would be absurd to demand that their faults be repaired at once and by violent measures,8 it can still be required of the individual in power that he should be intimately aware of the maxim that changes for the better are necessary, in order that the constitution may constantly approach the optimum end prescribed by laws of right. (KPW, 118; emphasis added)

Let’s try to understand. There is apparently a Staatsklugheit that is not yet axiologically determined, and one can have two conceptions of it. The first, the moral politician’s, believes it to be compatible with morality, and this compatibility gives rise to Staatsweisheit, political wisdom. The other conception, that of the political moralist, believes it to be distinct from morality because of natural necessities, and this conception will give rise to a limitative determination of Staatsklugheit as mere Klugheit, mere calculative prudence that is not at all moral. But the champion of Weisheit must remain attentive to Klugheit, not forget about it at any rate, to avoid moral politics going too fast and too violently. So it would be prudent not to be too wise in politics, wise to be a bit prudent, and this too is compatible with morality. Morality prescribes that one not be too moral in politics, and the reason is that a purely moral politics would paradoxically collapse into political moralism—by demanding that all vices be immediately corrected, the moral politician would have to take that correction as a goal and calculate technical means to reach it, which would turn him into a political moralist. To avoid this catastrophic reversal, to avoid turning into a political moralist, the moral politician has to become, preventatively, a bit of a political moralist, inoculate himself with a dose of prudence to avoid his supposed wisdom turning into destructive terror.

In Kant’s difficulty maintaining this crucial but evanescent distinction, we can see the outline of nothing less than the problem of the revolution, which is, as has often been said, the keystone of all Kant’s political philosophy. One risks making revolution if one is too moral in politics, and nothing in politics is as immoral as revolution or insurrection. Before reading what Perpetual Peace will say about this, let’s see how the “Doctrine of Right” establishes the constitutive illegitimacy of that temporal frontier, the revolution.

As always in the practical sphere, Kant will appeal to the value of contradiction in grounding the law, and this is what we shall follow here.9 There ought not be revolution, because it would be contradictory. This argument has two stages (bearing respectively on the executive power and the legislative power), which are not always adequately separated and that Kant himself may on occasion confuse. First, from the point of view of law, the supreme legislative power of the State belongs to the people, or at least to its unified will. The executive power, the agent or regent of the State, must be kept separate from it, on pain of despotism (we shall return to this). This executive power is subordinate to the legislative power, which can nominate it, depose it, but not punish it. For, once there is a supreme executive power in the State, it cannot be punished, because such punishment would have to be an executive act: one cannot constrain (by law) the one who by definition has all power of (lawful) constraint, because that would be a contradiction (MM, §49, 94).

However, unlike Rousseau, for whom the people is directly the sovereign,10 for Kant the people must have a head to represent itself to itself. This supreme head is not the executive regent, on pain of despotism. The people, according to a mechanism that, in spite of certain appearances, is not entirely Hobbesian, makes itself sovereign by bowing to the supreme power it gives to its head. The people is sovereign only if it sees its sovereignty embodied in its head, in whom the people sees itself to be sovereign and to which it is thus subjected. That there be such a head is inscribed in the rational idea of the State and is therefore not a historical contingency. But there are irreducible historical contingencies in every State, because States are not de facto formed according to the Idea of Reason, which merely provides the yardstick to measure the rationality of the State that exists and that owes its factual existence to mechanical and contingent causes. As we saw, the exit from nature cannot happen simply according to law, which is de facto laid down in nature (and therefore violence) and which is thus never entirely lawful, never simply right.11 That there be a head of State (a singular legislator) is inscribed in reason, but that there be this head of State is each time a singular contingency. The head of State one has cannot by definition (just because he is an empirical individual) be adequate to the Idea of supreme power that alone gives him his real power, whence the permanent and worrisome possibility that his legitimacy might be contested. Any given (contingent) head of State is constitutively both legitimate according to reason and potentially illegitimate according to history, whence the temptation, sternly denounced by Kant in the name of the legitimacy of legitimacy, legitimacy itself, to undertake historical research to cast into doubt (or even to shore up historically) the legitimacy of the powers that be. As soon as one has the head of State that one has (i.e., as soon as there is a State), this head really does represent the people, which can only see itself represented in its head, who is legitimate by the very fact of being the head. According to reason, the head of State, who is never adequate to the Idea of Reason, always in fact put in place in violence and therefore illegality, is by virtue of that very fact perfectly legitimate according to reason.

Historical research into the origin of this power is, therefore, futile (“for savages draw up no record of their submission to law; besides, we can already gather from the nature of uncivilized men that they were originally subjected to it by force” [MM, §52, 111–12]). If one undertakes such research, this can only be with a subversive aim, because casting doubt on the legitimacy of the supreme legislative power (represented by this or that head of State) already suspends his supremacy and is therefore already a crime even if the head of State is behaving in the most corrupt manner (MM, §49, Remark A; §52).12

This crime is again signaled by a contradiction. For the supreme power to be legally contestable, it would have not to be supreme:

Therefore a people cannot offer any resistance to the legislative head of a state which would be consistent with right, since a rightful condition is possible only by submission to its general legislative will. There is, therefore, no right to sedition (seditio), still less to rebellion (rebellio), and least of all is there a right against the head of a state as an individual person (the monarch), to attack his person or even his life (monarchomachismus sub specie tyrannicidii) on the pretext that he has abused his authority (tyrannis). —Any attempt whatsoever at this is high treason (proditio eminens), and whoever commits such treason must be punished by nothing less than death for attempting to destroy his fatherland (parricida). The reason a people has a duty to put up with even what is held to be an unbearable abuse of supreme authority is that its resistance to the highest legislation can never be regarded as other than contrary to law, and indeed as abolishing the entire legal constitution. For a people to be authorized to resist, there would have to be a public law permitting it to resist, that is, the highest legislation would have to contain a provision that it is not the highest and that makes the people, as subject, by one and the same judgment sovereign over him to whom it is subject. This is self-contradictory [welches sich widerspricht], and the contradiction is evident as soon as one asks who is to be the judge in this dispute between people and sovereign (for, considered in terms of rights, these are always two distinct moral persons). For it is then apparent that the people wants to be the judge in its own suit. (MM, 96–97)

Let the people merely ask the question of the sovereignty of the sovereign (the sovereign that in a certain sense it itself is) and everything will start to come undone. So the factually violent origin of the State must remain veiled to the people as such, in the name of reason itself, if reason is to have any chance of prevailing in politics.

Let me give the fuller context of this argument:

A people should not inquire with any practical aim in view into the origin of the supreme authority to which it is subject, that is, a subject ought not to reason subtly for the sake of action [werktätig vernünfteln] about the origin of this authority, as a right that can still be called into question (ius controversum) with regard to the obedience he owes it. For, since a people must be regarded as already united under a general legislative will in order to judge with rightful force about the supreme authority [Staatsgewalt] (summum imperium), it cannot and may not judge otherwise than as the present head of state (summus imperans) wills it to. Whether a state began with an actual contract of submission (pactum subiectionis civilis) as a fact, or whether power came first and law arrived only afterward, or even whether they should have followed in this order: for a people already subject to civil law these rationalizations are altogether pointless and, moreover, threaten a state with danger. If a subject, having pondered over the ultimate origin of the authority now ruling, wanted to resist this authority, he would be punished, got rid of, or expelled (as an outlaw, exlex) in accordance with the laws of this authority, that is, with every right. (MM, 95)

So the subject (here Kant) who raises these questions in spite of everything, even to say that they should not be raised (and even if he tries hard to draw casuistical distinctions between reasoning and reasoning “subtly,” between calling something into doubt and calling it into doubt “in a practical way”), is as close to illegality as can be, insofar as he is divulging the secret that grounds political power in law. We shall see a little later that there is an intractable tension in Kant between the resolutely public character of right and its veiled, secret ground.13

This is why:

A law that is so holy (inviolable) that it is already a crime even to call it in doubt in a practical way, and so to suspend its effect for a moment, is thought as if it must have arisen not from men but from some highest, flawless lawgiver; and that is what the saying “All authority is from God” means. This saying is not an assertion about the historical basis of the civil constitution; it instead sets forth an Idea as a practical principle of reason: the principle that the presently existing legislative authority ought to be obeyed, whatever its origin. (MM, 95)

Nowhere is the entanglement of force and law so clear. For if the head of State is the supreme head, this is because he has force on his side. This force is de facto limited and finite, of course; but de jure, this force is irresistible. So that law can always rightfully appeal to supreme force to enforce itself. The law must be stronger than any force, stronger than force itself. This is where the distinction between legislative and executive powers begins to tremble a little, because it is clear that the (absolute) force of law may be called in and even guaranteed by the legislator but can only be exercised by the executive. In both cases, as we have seen, law, in the name of noncontradiction, forbids any rebellious or revolutionary violence, but here, when we are dealing explicitly with the limits of power, contradiction (again invoked by Kant) seems to be as close as can be to the heart of the constitution itself, and Kant’s argument, which in this transitional paragraph between the one that posits the illegality of resistance against the executive and the one we have just quoted on the illegality of resistance against the sovereign legislator, is as awkward as can be:

Indeed, even the constitution cannot contain any article that would make it possible for there to be some authority in a state to resist the supreme commander [obersten Befehlshaber] in case he should violate the law of the constitution, and so to limit him. For someone who is to limit the authority in a state must have even more power [Macht] than he whom he limits, or at least as much power as he has; and, as a legitimate commander [Gebieter] who directs the subjects to resist, he must also be able to protect them and to render a judgment having rightful force in any case that comes up; consequently he has to be able to command resistance publicly. In that case, however, the supreme commander in a state is not the supreme commander; instead, it is the one who can resist him, and this is self-contradictory [welches sich widerspricht]. (MM, 96)

Where is the contradiction here? In the fact of thinking that one can place a (legal) limit on (supreme) power. But this contradiction is double: first, in order to limit a force, one must have at one’s disposal a force of resistance at least equal to the force one is trying to limit; translated into discourse, into claimed rights, these two forces will literally contradict each other. But that there be two forces thus contradicting each other is (second, then) a contradiction with respect to the Idea of the State, which involves the Idea of one supreme head, whereas in this case there would be two supreme heads (that of power and that of the power limiting that power) contradicting each other, which therefore destroys the very idea of law. This is why Kant will vigorously criticize the (English) model of a “moderate” constitution that might appear to give the limitative power to the people itself but which turns out to be an “absurdity” (Unding): “Instead of belonging to right it is only a principle of prudence” (and so, we might say, a principle for the political moralist), which allows for undue influence on government in the named of a supposed popular opposition.

Revolution, consequently, is strictly illegal, even if it is carried out in the name of the purest morality, especially if it is carried out in the name of the purest morality. The illusion of revolution consists in believing itself to be justified or justifiable in the name of the most moral morality. In this sense, the apparently most moral revolution, the purest in its republican (and therefore peaceful) intentions, would be the least moral and the most violent, just because it presented itself as moral. Because the revolution breaks absolutely all constituted legality and can only reinstate a legality after a hiatus, “the silence of the laws,”14 which is none other than the state of nature, pure illegality.15

So it is in the name of morality itself that the moral politician must avoid rushing in a revolutionary way toward the telos of a republican State in conformity with the Idea of Reason. To the extent that we have such an Idea, thanks to reason, we must avoid making it a goal to be attained by some programmed action, failing which we will fall back into political moralism. In order to be a moral politician, one must look away from the rational goal and have eyes only for the formal principle of law, which absolutely forbids that one could ever ground in law a radical attempt to realize the law. So the moral politician will be more political than the political moralist (who thinks he is being so very political) by refusing to exploit politics to supposedly moral ends. Being “more political” here means waiting for opportunities to arise to give a little nudge, make a little improvement, according to a wisdom that looks as close as can be to simple political prudence. In this perspective, one can let revolutions come (and in a certain secret way, the very fact of asking the question of law cannot fail to call for them to come) as further opportunities that allow some progress toward the goal one must, above all, not have directly in view, because after the revolution, once we have passed through the abyssal hiatus of the state of nature that it comprises, once we have crossed the temporal frontier, a new regime will have been installed if chance is on the side of the revolutionaries, a necessarily legal regime that cannot legally be overturned on the pretext of restoring the old order.16 For the moral politician, whose wisdom consists in a nonmechanistic quasi-prudence, the revolution is the very example of luck, of the opportunity to be grasped, the natural opportunity that prefigures the natural end of politics that must, above all, not be transformed into a goal to be attained mechanically. The moral politician, then, will let things come to him, according to the laws of this quasi-prudence, laws that in a note Kant calls “permissive laws” of reason:

These are permissive laws of reason, which allow a state of public right to continue, even if it is affected by injustice, until all is ripe for a complete upheaval [Umwalzung] or has been prepared for it by peaceful means. For any legal constitution, even if it is only in small measure lawful, is better than none at all, and the fate of a premature reform would be anarchy. Thus political wisdom [die Staatsweisheit, not “political prudence” as the translation now misleadingly has it], with things as they are at present, will make it a duty to carry out reforms appropriate to the ideal of public right. But where revolutions are brought about by nature alone, it will not use them as a good excuse for even greater oppression,17 but will treat them as a call of nature to create a lawful constitution based on the principles of freedom, for a thorough reform of this kind is the only one which will last. (KPW, 118–19n; tr. mod.)

So in what does the moral character of the moral politician consist, finally? In a softening of the moral imperative, or at least in a political patience that will welcome even illegal and immoral events (revolutions) with a view to the end that must not be rushed and that must not even really be aimed for or taken as an end. This is also why, in external relations too, one must wait for the right moment and not try to bring about perpetual peace too soon:

But as for the external relationship between states, no state can be required to relinquish its constitution, even if the latter is despotic (and hence stronger in relation to external enemies), so long as this state is in danger of being engulfed at any moment by other states; hence while plans must be made for political improvement, it must be permissible to delay their execution until a better opportunity arises. (KPW, 118)

What is this moral-political “wisdom” that is neither strictly moral nor strictly political? What is its secret, the play of its veils? Who gets to have it or practice it?

Having established to his satisfaction that there can be no objective conflict between politics and ethics, on the grounds that once we have recognized the absolute authority of the concept of moral duty “it is patently absurd to say that we cannot act as the moral laws require” (KPW, 116), Kant turns to a transcendental analysis of public (and therefore political) right. What makes public right public is the transcendental character of publicity (Publizität). No matter the material content of the law, for it to be public it must have the form of publicity or publicness, and the same goes for the right of peoples (i.e., international law, which is law only insofar as it can be founded on the possibility of making public the maxims of any proposed political action without the fact of publication ipso facto making that action inoperative). It is “easy,” then (as moral knowledge always is in Kant), to know whether an action is in conformity with public or international law: It suffices to run its maxim through the test of publicity understood in this way.

We can begin here to get a sense of what, for Kant, is supposed to distinguish morality from politics: In morality, one can assess whether a proposed action is moral by running its maxim through the test prescribed by the categorical imperative, to see if this maxim can without contradiction be taken as a universal law. This does not require publicity in any normal sense. But in public law, the categorical imperative prescribes a test slightly displaced from that of morality itself, one which gives the “transcendental formula” of public right: “All actions affecting the rights of other human beings are wrong [unrecht] if their maxim is not compatible with their being made public” (KPW, 126). First, the domain of this principle is restricted to the political sphere (or at least the sphere in which my freedom externally confronts that of others); second, what is the proof in this test is not formal noncontradiction (as in the moral categorical imperative) but compatibility with making this same maxim public. This compatibility (Verträglichkeit) is measured in more complicated fashion than the simple test of noncontradiction that grounds ethics, because here one must take into account a possible resistance or opposition of others to what I propose to undertake:

For a maxim which I may not declare openly without thereby frustrating my own intention, or which must at all costs be kept secret [verheimlicht werden muss] if it is to succeed, or which I cannot publicly acknowledge without thereby inevitably arousing the resistance of everybody to my plans, can only have stirred up this necessary and general (hence a priori foreseeable) opposition against me because it is itself unjust and thus constitutes a threat to everyone. (KPW, 126)

This principle, says Kant, is purely negative in that it identifies what is unjust rather than what is just.18 As such, this principle is “like any axiom, valid without demonstration and [. . .] easy to apply” (KPW, 126; emphasis added). As if by chance, the two examples Kant gives to illustrate this principle are, for internal right, insurrection, and, for external right, various forms of international relations: what we have called the temporal frontier of revolution, where one regime is in discontinuous temporal transition into another in the same place, and the spatial frontier of the state, where one regime is in discontinuous spatial transition into another at the same time.

First example: There can be no right to insurrection, even in an obvious case in which the people’s rights are being violated by the sovereign, because the maxim of such an action could not be publicly declared. First by reason of contradiction, as we just saw: the contract that binds the people to the head of state could not contain a right allowing the people to use violence against that head, for in that case the head of state would not in fact be the head of state—which is a contradiction. But this contradiction is brought out by noting that if one were to declare publicly the maxim of the action of rising up against the head of state, the point of the insurrection would by that very fact be compromised (“the maxim would therefore have to be kept secret” [KPW, 127]), whereas the corresponding maxim of the head of state (to punish by death any attempt at rebellion) would not at all have to be kept secret: The head of state knows that he (at least in principle) “possesses irresistible supreme power” and so “does not have to worry that his own aims might be frustrated if his maxim became generally known” (KPW, 127).

Kant seems less sure of this position, however, in The Conflict of the Faculties:

Why has a ruler never dared say publicly that he recognizes absolutely no right of the people opposed to him, that his people owe their happiness solely to the beneficence of a government which confers their happiness upon them, and that all presumption of the subject to a right opposed to the government (since this right comprehends the concept of permissible resistance) is absurd and even culpable? The reason is that such a public declaration would rouse all of his subjects against him; although, as docile sheep, led by a benevolent and sensible master, well-fed and powerfully protected, they would have nothing wanting in their welfare for which to lament. (CF, 155–57n)

Which complicates somewhat the relation between secret and publication. This extra move in the play of the veil, which keeps what is no secret secret all the while letting something of it be seen (and which we might suspect just is politics), is registered a little further on in this same text, with regard to the British constitution. Kant has just briefly repeated the transcendental argument in favor of publicity. But states in fact do not stop at banning publicity, which is, however, required for the rational progress for which Kant is arguing. There is something worse than such an interdiction, or at least something other, and here is where the veil will hide itself, veil itself, and in so doing perhaps show itself for what it “is.”

What is worse—or at least other—than the interdiction of political publicity? A disguise, and this time a legal disguise, of the nature of the Constitution itself. This disguise, as Kant will say immediately, is not very effective as a disguise, but we might be tempted to say that it works all the better for that fact. And that is the veil, in its mysterious transparency:

Another disguise, which is easily penetrated indeed, but is one to which a nation, nevertheless, is legally committed, is that pertaining to the true nature of its constitution. It would be an insult to its majesty to say of the British nation that it is an absolute monarchy: some rather maintain that a constitution limiting the will of the monarch through the two Houses of Parliament, acting as representatives of the people, is supposed to exist; and yet everyone knows perfectly well that the monarch’s influence on those representatives is so great and so certain that nothing is resolved by the Houses except what he wills and purposes through his minister. The latter then probably even proposes resolutions in connection with which he knows that he will be contradicted, and even arranges it that way (for example, with regard to slave-trade) in order to provide a fictitious proof of the freedom of Parliament. This representation of the nature of the case has something delusive about it so that the true constitution, faithful to law, is no longer sought at all; for a person imagines he has found it in an example already at hand, and a false publicity [eine lügenhafte Publicität] deceives the people with the illusion of a limited monarchy in power by a law which issues from them, while their representatives, won over by bribery, have secretly subjected them to an absolute monarchy. (CF, 163)

This disguise is worse than the interdiction of publicity, because it is legal, and it remains in place in spite of, and by means of, publicity itself. Publicity, whose—transcendental—principle appeared to be clear and infallible, and to keep the secret out of politics, can nonetheless allow this secondary disguise with respect to the true nature of the constitution to come about. What is the secret? The fact that by means of a pseudo-transcendental publicity, or by means of a transcendental pseudo-publicity, the public believes that it is in the presence of the thing itself, “the true and rightfully established constitution,” whereas this is not at all the case. Kant claims that this disguise of the true nature of the British constitution is easy to see through: There is a veil in the sense of a misleading cover, and it must be torn or penetrated for the truth to be discovered. One senses Kant’s impatience and even irritation faced with the British imposture: The British are proud of having already realized a constitution in conformity with the transcendental principles of right; well, we had better disabuse them immediately, and that will not be difficult. Kant does not even deign to do so in the main text and relegates the task to a footnote:

A cause, the nature of which one does not directly understand, makes itself known through the effect which unfailingly attaches to it. What is an absolute monarch? He is one at whose command, if he says, “war is necessary,” a state of war immediately exists [es soll Krieg sein, sofort Krieg ist]. What is a limited monarch, on the other hand? He who must first consult the people as to whether war is or is not to be; and the people say, “there is to be no war,” so there is no war [es soll nicht Krieg sein, so ist kein Krieg]. For war is a situation in which all political power must be at the disposal of the sovereign. Now the British monarch has conducted wars aplenty without seeking the consent for them. Therefore, this king is an absolute monarch who ought not to be one, of course, according to the constitution; but he is always able to bypass it because precisely through those political powers, namely, that he has it in his power to dispense all appointments and posts, he can consider assured the assent of the representatives of the people. In order to succeed, however, this system of bribery must certainly not be publicized [muss . . . nicht Publicität haben]. Hence it remains under the highly transparent veil of secrecy [Es bleibt daher unter dem sehr durchsichtigen Schleier des Geheimnisses]. (CF, 163n)

What is the conceptual status of this rather seductive “highly transparent veil”?19 Such a veil is not content simply to let something show through: It does not hide that it is not hiding anything, or it lets see that it is letting everything be seen. But, by letting it be seen in this way that it is letting everything be seen, with a wink of connivance, as it were, does it not hide even more effectively what it is supposed to be letting one see? The veil always also unveils or promises an unveiling, but that promise, and the prospect of finally seeing what is behind it, are also part of the veiling. What the veil is really veiling is that the promise of unveiling and revelation is part of the seductive game of politics. For what “is not known to the public” is not any kind of content: The king does not bother to ask the people’s opinion, not so that he can simply hide what he intends to do, to make a secret of it, but because he can count on public approval and thereby the connivance of the public in the structure of secrecy itself. What is hidden in this apparent transparency is its “system”—namely, the structure of the veil itself, given no publicity because it is hiding in plain sight as publicity itself. All supposed political “transparency” is at risk of producing the same effect of “corruption” through the action of what is, apparently, publicity itself, the appearance of publicity as appearance itself. The disguise is easy to pierce because there is not even really a disguise; the veil is transparent, and even very transparent, there is no secret—and just that is its whole mystery. This system cannot be known to the public as such, because it defines publicity or publicness itself as a transcendental structure. The so-called public space as such is always veiled to itself, never entirely available to itself as itself. The truth in politics is not available in politics. There is no secret except the absence of any secret—and that is the secret that the philosopher must try to get out.

Second example: International right is necessarily a public right that “implies by definition that there is a general will which publicly assigns to each that which is its due” (KPW, 127; tr. mod.). So if, for example, the question arises of knowing whether a State can break a promise made to another State (under the pretext of its internal responsibilities), or if it is permissible for less powerful States to attack a neighbouring State that has become powerful and threatening, or if a small State can be subjected to a larger State whose territorial continuity it interrupts, then one can immediately discover that these actions would be unjust because the fact of publishing their maxims could not fail to make the proposed actions unrealizable by virtue of forewarning the other State.

Here we find at work again all the ambiguity of the political moralist and the moral politician, exacerbated by the fact that Kant’s supposed “solution” to what he here calls “the antinomy of politics and morals” merely makes the antinomy in question more antinomic, perhaps beyond the form of antinomy itself. For, according to the principle of publicity of maxims, in each case listed above the injustice of the action in question is proved by the fact that making the maxim public would render it ineffective. We know it is unjust because it would not work if made public. The transcendental injustice of political prudence (which is just politics itself, however) is seen in the fact that it would miss its aim if it did not keep its maxims secret.

How does the secret work here? Everything that Kant wants to say implies that (public) right does not like the secret, that the secret is on the side of (moralizing) politics, that it suffices to dissipate the secret to be on the right track when it comes to politics and morality and their relationship. It is not that every maxim made public is by that fact made moral (for, as Kant recognizes as though in passing, “the person who has decisive supremacy has no need to conceal his maxims [seiner Maximen nicht Hehl haben darf]” [KPW, 129], so that revealing the secret can also be a power play) but that, according to this negative test, no maxim that does not pass the test of publicity can be considered moral. There are no secrets for the moral politician, everything must be declared, unveiled, brought to light. But this righteous doctrine of nonsecrecy encounters two distinct problems: First, it makes sense only in the very situation whose advent it is supposed to help along—namely, perpetual peace. For there to be a politics compatible with morality, and which by that fact could lead to perpetual peace, we would already have to have perpetual peace (and thus there would be no need for politics at all, because, as we have said, the end of politics is the end of politics). Politics can finally be moral when it no longer needs to be politics; we can have perpetual peace when we’ve got perpetual peace; transparency can reign when transparency reigns.

This much we could have deduced from our earlier arguments. But there is a second problem that is worse for Kant. Moral politics does not tolerate the secret. But, according to Kant himself, moral politics itself is based on a secret. As we shall see, this secret is even the secret of the secret, the secret itself, the very secret that allows for the possibility of a moral politics in the first place. This secret is so secret that one must not even try to find out what it is. In saying so, Kant immediately violates the secret that he has just put in place as the very foundation of moral politics. And by blowing the secret of the State (of any State) in this way, Kant, according to his own doctrine, is guilty of the highest treason and risks exile and death. This is the political price of philosophy, or perhaps its political secret. To avoid this consequence, the secret of the secret must be re-established, its violation must be kept secret; but as this (philosophical) violation of the (political) secret is absolutely indispensable if politics is to have a chance finally of being moral, this secret violation of the political secret must be made public, but somehow made public secretly.

Which is why we have not yet breathed a word about the second supplement to the Perpetual Peace essay, between the first supplement (which concerns the natural “guarantee” of perpetual peace) and the appendix on the relations between morality and politics that has been exercising us. This second supplement is indeed entitled “Secret Article of a Perpetual Peace [Geheimer Artikel zum ewigen Frieden]” and was added to the second edition of Kant’s text in 1796. This little supplement takes to a certain limit the logic we have been following thus far. We have seen that the secret, the need for secrecy, is sufficient proof of the immorality of a political maxim, and this is what Kant duly recognizes at the beginning of the article. The secret is objectively contradictory in public right but can perhaps be justified subjectively. What does this mean? That the identity of the author of the secret, or of the one who dictates it (die ihn diktiert), can remain secret:

But in subjective terms, i.e. in relation to the sort of person who dictates it, an article may well contain a secret element, for the person concerned may consider it prejudicial to his own dignity to name himself publicly as its originator [Urheber]. (KPW, 114)

So if there is a secret article, what is, or should remain, secret is not so much the article itself or its content but the name of its author. The secret article makes a secret of its signature. But in fact there is only one secret article of this kind (where the “subjective” secret is justified), and that secret article is as follows, openly declared by Kant, written out in quotation marks, emphasized, without forgetting the signature (for Perpetual Peace was not published anonymously and had Kant’s name on the title page):20

“The maxims of the philosophers on the conditions under which public peace [öffentlichen Friedens] is possible shall be consulted by states which are armed for war.” (KPW, 115)

How is this a secret? In that such an article could never be admitted to by its authors, namely the heads of State, who must hide their invitation to the philosophers to discuss such questions behind a general authorization allowing the philosophers to debate everything “freely and publicly.” The States, then, wanting to consult the philosophers, who are mere subjects (Untertanen), cannot do so openly, because that would compromise the dignity of the supreme legislative authority of the State (“to which,” Kant adds with a hint of irony made hollow by the gravity of the problem here, “we must naturally attribute the highest degree of wisdom [die grösste Weisheit]” [KPW, 115]) to have to ask advice from someone who cannot, by definition, have the same degree of wisdom. The secret is here guaranteed by publicity itself: The State pretends to be generously allowing a freedom, an openness, publicity, where in fact it is secretly hoping to learn something in secret. The article is, then, secret and, in fact, doubly secret: both within the State, where the head of state will not admit to his subjects that he is seeking counsel from some of them (the philosophers), and without, in relations between States, where the heads of State will not want to admit to each other that they are all looking for counsel from mere philosophers. This article can be so secret that there is no need for it even to appear in the perpetual peace treaty being signed by the States entering into the federation of States (the “surrogate” solution to the issue of perpetual peace), because everyone’s agreement on this point “already lies in the obligations imposed by universal human reason in its capacity as a moral legislator” (KPW, 115).

So there is no need to make public the article of publicity itself: In fact, it must remain forever secret in its self-evident rationality, for fear of compromising the dignity of the supreme authority of the State, and it can remain forever secret, because in any case it is a universal rational obligation, which will to that extent already be known and about which the states can have mutual confidence in each other, because this secret can be a secret for no one in that it emanates from universal reason. What remains secret, then, is not the fact of publicity (everybody, all subjects, can hear and read, freely discussing among themselves, the philosophers to whom the States concede that freedom) but its end (to give counsel to the states armed for war).

What is Kant doing in formulating and signing this secret article? Obviously betraying the secret by publishing it. Not only is he already using the freedom he is also demanding in so doing, but he is making the publication even more public by revealing its secret (and therefore not straightforwardly moral) purpose. He makes public the secret purpose of publicity itself. Kant reveals the true but hidden address of his whole text (the head of State) and thereby too his political ambition (to dictate to that head of State), or at least the inextricable entanglement of his moral thought and its being compromised by the kind of subjective “prudence” he so forcibly denounces elsewhere. But is this revelation (namely, that revealing the secret, as when in the Rechtslehre he reveals the secret violent origin of the state that the subjects are supposed never to know, obviously making the philosopher guilty in the eyes of public right) not still harboring a further secret?

What exactly is going on in this publication of the secret? Kant says in his secret article (that he is thus dictating to its author, namely, the head of State, whose dignity is compromised here not so much by being the author of the article in question but by the very fact of having to have it dictated to him by one of his subjects, the fact of not even being its author, of having the structural stupidity of the sovereign revealed) that the philosophers must be consulted by the head of state. But this consultation looks odd, because if the head of State allows the philosophers to express themselves publicly so he can secretly be informed as to what reason itself dictates to mankind in general, this is not exactly in order to act accordingly but just in order to hear. The philosopher must simply be “given a hearing [daßs man ihn höre]” (KPW, 115). The head of State does not exactly listen to the philosopher, for fear of indignity, but one might hope he hears the philosopher. The head of State needs to do this just because the philosopher has no political power at all: In politics, it is not the philosopher’s but the jurist’s judgment that makes the law. However, as in the case of the political moralist (who “does not deserve a hearing [verdienen sie kein Gehör]” [KPW, 123]), that judgment, which is content merely to apply the law to the case, is by definition hand in glove with the powers that be. In applying the law, the jurist by definition has right on his side, with all the overwhelming force without which it would not be right. But according to an inevitable effect of corruption and usurpation, the force of law (without which the law would not be the law) will always win out over law itself, meaning that, in Kant’s words, the jurist, having taken as symbols the scales and the sword, does not hesitate to throw the sword into the balance when the scales are not coming down on his side (KPW, 115). However, in order to decide, not the cases under the law but the case of the law itself,21 this force must be absent. The right of right must then be spoken secretly by the philosopher from beyond the boundaries of force and, indeed, of right—which is why the philosopher cannot be king and rather tends to join the legislator in his exile, ex lex, outlawed from the City, structurally sentenced to death, from which secret position he hopes to make himself heard, knowing that he cannot exactly be listened to.

This secret place of exile for the philosopher, which is nonetheless a public place and even the place from which what is public can be defined—for philosophy is intrinsically public, rationally speaking it should have no secrets—this secret but radically open and thereby exposed place is exactly what we are calling the frontier: It is always on the edge of the “mechanical” system of right (which is always perfectly and necessarily right, because the law is the law), the zone of transition between existing systems of right (figured by the revolution in time and the frontier of the State in space). This secret place, which is neither simply spatial nor simply temporal, and which tendentially fills the whole space and time of politics, like a fractal curve, this place from which the philosopher (the critical philosopher at least) makes himself heard without being listened to can nonetheless just about be recognized and named by right, if only the better to locate it and keep it safely out in the margins or the marches.

In the introduction to the Rechtslehre, having separated out the domain of right from the domain of virtue (the former considering the limitation of my freedom by that of others as a question not of virtue but solely of constraint and thus able to be formulated “by analogy with the possibility of free movement of bodies within the law of the equality of action and reaction” [MM, 26]), Kant nonetheless recognizes a frontier zone that, although it does not come under morality, is also separated from the domain of law while still appealing to it for decision. This zone is presented through discussion of two cases that appear to be diametrically opposed and that limit the domain of right rather as contradiction and tautology limit the domain of logic in Wittgenstein’s Tractatus (5.101). We will no longer be surprised to find that, as is so often the case in Kant whenever trouble is brewing, these cases are presented with reference to Epicurus:

But without making incursions into the province of ethics, one finds two cases that lay claim to a decision about rights although no one can be found to decide them, and that belong as it were within the intermundia of Epicurus.—We must first separate these two cases from the doctrine of right proper, to which we are about to proceed, so that their wavering principles will not affect the firm basic principles of the doctrine of right. (MM, 26)

The intermundus or metakosmion22 is, from the point of view of right at any rate, the place of ambiguity or equivocation (ius aequivocum), placed, marginally, in an appendix to the introduction. The two cases in question are not just any cases but run the risk, if one is not careful, of taking over the whole domain of right. One case is equity and the other the right of necessity.23

Equity pulls right toward morality, the right of necessity toward mere natural mechanism (we might want to say that the whole domain of public right—of politics—just is the intermundus, the frontier, between these two domains):

An authorization to use coercion is connected with any right in the narrow sense (ius strictum). But people also think of a right in a wider sense (ius latium), in which there is no law by which an authorization to use coercion can be determined.—There are two such true or alleged rights, equity and the right of necessity. The first admits a right without coercion, the second, coercion without a right. It can easily be seen that this ambiguity really arises from the fact that there are cases in which a right is in question but for which no judge can be appointed to render a decision. (MM, 26–27)

The argument from equity arises when the strict application of right produces injustice, as judged according to a criterion that cannot be presented to any tribunal and that cannot, therefore, give rise to a legal judgment. According to equity, in Kant’s example, one ought not to respect the equal distribution of profits in a case where one partner has done more work and thereby suffered greater losses that the others: His disproportionate loss ought to be compensated, but according to the law, one must respect the contract that demands equality. According to equity, someone who receives a payment due to him in a currency that has meantime been devalued is due a supplementary payment that no tribunal, however, is in a position to accord. Equity is a “mute divinity who cannot be heard [eine stumme Gottheit]” (MM, 27) but who incites one to push cases before a tribunal when they can, according to Kant, be heard only by the court of conscience. Kant does not contest the truth of what he calls equity’s motto (“the strictest right is the greatest wrong [summum ius, summa injuria]”) but simply the ability of right to remedy that wrong, which it inevitably produces in its very righteousness.

Second case: the supposed right of necessity (ius necessitatis). Kant deals with it even more rapidly, under the sign of contradiction, because here there would supposedly be a right where there is no injustice. I invoke the right of necessity not when the other has attacked me and I have killed him to save my own life but when, without it being his fault, I would die if I did not kill him. After the shipwreck, I push the only other survivor off the single piece of floating wreckage in order to use it to save myself. Here I am acting under a certain constraint, but right cannot be involved, says Kant, because there could be no penal law to punish this case (it would make no sense to threaten me with death for taking by force the last floating plank, “since a threat of an ill that is still uncertain [death by a judicial verdict] cannot outweigh the fear of an ill that is certain [drowning]” [MM, 28]). This does not mean that the action is just (for I have caused someone to die without legal justification) or even legal: It is not that I am not guilty (I am) but simply not punishable. Invoking necessity changes nothing, because “there could be no necessity that would make what is wrong conform with law” (MM, 28).

In both cases, then, there is equivocation. In the case of equity, subjective right (as exercised by reason) justifies me whereas objective right (as practised by a tribunal) can only find that I am in the wrong; in the case of necessity, subjective right says I am wrong where the objective right of the tribunal finds me in the right or at least cannot punish me even though I am not innocent. In both cases, the proper exercise of right leaves a residue of injustice that belongs to the intermundus, or the frontier, in the sense that it concerns right (neither of these cases is purely a moral matter and in both cases the question is that of a possible legal judgment by a tribunal).

In order to put forward a doctrine of right, Kant has to get rid of the problem of equity, even though it clearly can show up at any moment in the exercise of right, and even though in fact it must show up in every case, each time right is rendered in pure legality, to the extent that the more right is right, the less just it is. Perfectly right right, analogically mathematical or mechanical, always runs the risk, by its very rightness, of being merely right, pure constraint without justice, force of law become simple force, and thus absolutely unjust. And even though the case of necessity seems as though it would show up less often (on the basis of Kant’s example or the tradition he is following here), it is no less important, in that the very possibility of such an unjudgeable case (even if there were only one) puts the whole doctrine of right into question.

So it is no accident that this problem of a supposed right of necessity returns in Kant at a crucial point of his political philosophy—namely, the revolution. It is hard not to see the similarity between the shipwreck survivor (guilty but unpunishable) and what happens in revolution, where the revolutionaries are never within their rights but where, once the revolution has succeeded (if it succeeds), they are unpunishable too. And just as, in the case of the shipwreck, the other could have appealed to the same right if he had succeeded in pushing me into the deep, in the case of the revolution, if the people invokes the right of necessity to justify its rebellion, the head of state could just as plausibly invoke it to justify its repression. Right cannot punish this action that suspends right (“Necessity knows no law” because necessity just is the illegal law of nature) and is suspended on it (in the case of revolution, this shows how right originates in a violence that escapes its judgment).24

In “Theory and Practice,” having established the absolute illegality of revolution, Kant clarifies this argument:

Nor can a right of necessity (ius in casu necessitates) be invoked here as a means of removing the barriers which restrict the power of the people; for it is monstrous to suppose that we can have a right to do wrong in the direst (physical) distress.* For the head of state can just as readily claim that his severe treatment of his subjects is justified by their insubordination as the subjects can justify their rebellion by complaints about their unmerited suffering, and who is to decide? The decision must rest with whoever controls the ultimate enforcement of the public law, i.e. the head of state himself. Thus no-one in the commonwealth can have a right to contest his authority.

*[Kant’s note:] There is no casus necessitatis except where duties, i.e. an absolute duty and another which, however pressing, is nevertheless relative, come into conflict. For instance, it might be necessary for someone to betray someone else, even if their relationship were that of father and son, in order to preserve the state from catastrophe. This preservation of the state from evil is an absolute duty, while the preservation of the individual is merely a relative duty (i.e. it applies only if he is not guilty of a crime against the state). The first person might denounce the second to the authorities with the utmost unwillingness, compelled only by (moral) necessity. But if a person, in order to preserve his own life, pushes a shipwrecked fellow away from the plank he grasps, it would be quite false to say that (physical) necessity gives him a right to do so. For it is only a relative duty for me to preserve my own life (i.e. it applies only if I can do so without committing a crime). But it is an absolute duty not to take the life of another person who has not offended me and does not even make me risk my own life. Yet the teachers of general civil law are perfectly consistent in authorising such measures in cases of distress. For the authorities cannot combine a penalty with this prohibition, since this penalty would have to be death. But it would be a nonsensical law which threatened anyone with death if he did not voluntarily deliver himself up to death when in dangerous circumstances. (KPW, 81–82)

See too the famous note to §49 of the “Doctrine of Right” on the execution of the sovereign and the abyss it opens up. Here there is a further complication in that Kant recognizes that one might at least understand the people’s (illicit) appeal to the right of necessity if they simply force the sovereign to abdicate (and by extension, even if they assassinate him): They would have no real right on their side, but the supposed right of necessity would at least provide a pretext for their illegal action. What opens the abyss is the claim to be justified in condemning the sovereign “formally,” according to the law (MM, 97n).

So if equity appears in every case as the inevitable bending of the right that is always too right (in the sense of straight, rectus), its inevitable becoming-oblique, the case of necessity (always an exceptional case) is always at the basis of right. For as Kant insists, all law must have the character of necessity, be it on the side of the laws of nature dictated by the legislative understanding or on the side of the moral law, where the typic that borrows from nature the form of conformity to law (Gesetzmässigkeit) also borrows this character of necessity.

That all laws have the character of necessity is a leitmotif of the Groundwork of the Metaphysics of Morals and the second Critique (see, for example, the whole “Analytic of Pure Practical Reason” [CPrR, 17–90]). Moral necessity and natural necessity cannot, of course, be simply identified, and Kant separates them already in the first Critique (see, for example: “The ought [das Sollen] expresses a species of necessity [eine Art von Notwendigkeit] [. . .] which does not occur anywhere else in the whole of nature” [A547/B575]). The fact remains that “law” and “necessity” are to be found on both sides of the great Kantian frontier between nature and freedom and that the relationship between the sense they have on each side remains obscure (the object of an analogy). What is the law of law that allows these two senses to communicate? Or what is the necessity of the necessity that rules over law in general? It will not suffice simply to invoke the Kluft that will be opened in the introduction to the third Critique, and the analogical bridge supposed to link its two sides, because we cannot yet presuppose that we are dealing with similar enough situations on each side of the abyss to allow a bridge to make the connection. So it is still obscure to claim that the necessity on each side is of a different species, in that on the practical side necessity seems to be quite radically different insofar as it immediately doubles up: Practical laws are laws insofar as they are practical and immediately determine the will but simultaneously insofar as they are theoretical (known a priori to be such). We are still dealing with something like knowledge on the practical side. (The moral law as formulated by Kant obligates us but also informs us: Our relation to the text of the second Critique is not immediately practical but theoretical. This problem is difficult enough to motivate Levinas’s radical suggestions about “ethics as first philosophy” and “an ethics of ethics.” But Levinas also still writes a theory of ethics in spite of himself.) This doubling up seems to allow for the analogy, but in a way that the analogy itself tends to efface, or leaves, precisely, in “equivocation.”

The whole enigma (mystery or secret) of Kant’s thinking about law is concentrated in this problem, this “equivocation” of a necessity that grounds law, and thus right, but that here immediately undermines the foundations of that same right to the point that, once again, it must remain secret. The secret of the law is that necessity knows no law, whereas all law must know necessity.25

This is, again, the secret hidden at the origin of the state, into which the subjects must not even inquire, the very question of which cannot even be raised without right being immediately overrun and provoked into a punitive paroxysm. This is the same secret that Kant is betraying, ex lex, when he secretly tries to denounce secrecy in Perpetual Peace and when he banishes our two equivocal cases to the Epicurean intermundus in the introduction to the “Doctrine of Right,” only to see these two ghosts return phantomatically to haunt the entire text, emerging from the abyss of regicide or coming down from the heights of revolutionary violence.26 Exactly here, on the frontier of right, torn between pure justice and natural necessity, is the place of the philosopher-politician, undecidably moral and moralistic, in the right and yet always radically equivocal, with his wisdom that is also always mere prudence, his claim to parrhesia that is still always perhaps a rhetorical ploy, his wholly public secrets and totally transparent veil. This properly equivocal position, this frontier position, where law trembles, gathers together the quasi-concepts we have been following in Kant. Nature is again one possible name for this, to the extent that, since Heraclitus, nature has loved to hide, fold on itself, double and veil itself, make itself secret. In spite of certain appearances, this frontier as such (but in truth it is nothing and can have no quiddity) is no more political than it is conceptual, no more practical than it is theoretical, but rather the “dynamic” division of these putative domains. Which is why we cannot avoid crossing Kant’s final frontier—namely, that of judgment.

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1. In this 1793 text, Kant still seems to believe in the International State: The theory of right “recommends to us earthly gods the maxim that we should proceed in our disputes in such a way that such an allgemeinen Völkerstaat [and not Völkerbund; the translation here reverts for no textual reason to ‘a universal federal state’ to translate what just a few lines earlier was ‘a state of international right,’ which is also misleading as it suggests a Zustand rather than what is here explicitly a Staat] may be inaugurated, so that we should therefore assume that it is possible (in praxi)” (KPW, 92). It is only really in Perpetual Peace itself that the clearer (though still far from clear) distinction between the International State (as Idea of reason) and the realizable Federation (as negative surrogate) is put in place.

2. We can see more clearly how that never could be moral by keeping in mind Jean-Luc Nancy’s pithy formulation, according to which in Kant “the [moral] law is the law to make the law” (L’impératif catégorique [Paris: Flammarion, 1983], 16). But as I suggested above, this “law to make the law” cannot project its end in a law made and must always be law in the making.

3. See too in the eighth proposition of the “Universal History” text: “In the present case, it is especially hard to be indifferent, for it appears that we might by our own rational projects accelerate the coming of this period which will be so welcome to our descendants” (KPW, 50).

4. This is also an insistent theme of The Conflict of the Faculties: “How is a history a priori possible? Answer: if the diviner himself creates and contrives the events which he announces in advance./ It was all very well for the Jewish prophets to prophesy that sooner or later not simply decadence but complete dissolution awaited their state, for they themselves were the authors of this fate. [. . .] So far as their influence extends, our politicians do precisely the same thing and are just as lucky in their prophecies. We must, they say, take men as they are, not as pedants ignorant of the world or good-natured visionaries fancy they ought to be. But in place of that ‘as they are’ it would be better to say what they ‘have made’ them—stubborn and inclined to revolt—through unjust constraint, through perfidious plots placed in the hands of the government; obviously then, if the government allows the reins to relax a little, sad consequences ensue which verify the prophecy of the supposedly sagacious statesmen” (CF, 143).

5. To maintain consistency with the ethical writings, I have here and elsewhere translated Klugheit as “prudence” rather than “expediency” or “opportunism,” although Klugheit definitely carries a connotation of cleverness and even craftiness that “prudence” does not quite capture.

6. This does not mean that prudence has no place in Kant. See, for example, in the first Critique, Kant’s appeal to prudence in a context that, as chance would have it, recalls our opening discussion of Frege: “Above, in the presentation of the table of the categories, we spared ourselves the definitions of each of them, on the ground that our aim, which pertains solely to their synthetic use, does not make that necessary, and one must not make oneself responsible for unnecessary undertakings that one can spare oneself. This was no excuse, but a not inconsiderable rule of prudence [eine nicht unerhebliche Klugheitsregel], not immediately to venture a definition and seek or pretend to completeness or precision in the determination of the concept if one can make do with one or another of its marks, without requiring a complete derivation of everything that constitutes the entire concept” (CPR, A241; this passage is deleted in the second edition).

7. The potentially deathly quality of the position of the moral politician is brought out more starkly still in Kant’s association of it with the “proverbial saying fiat iustitia, pereat mundus [let justice be done though the world should perish],” which Kant himself discreetly (prudently) softens by translating it as “let justice reign, even if all the rogues in the world must perish” (KPW, 123).

8. In the first Critique, Kant argues that the proper conduct of critique must be independent from any anticipated positing of what comes after the critique, which positing could only be dogmatic and thereby violent. Critique should to that extent not know in advance where it is going. Which means that it is never exactly critique, if the meaning of “critique” is provided teleologically by its relation to a doctrine to come. The point of the work done in this book is to show how Kant, a little in spite of himself, leads us to an experience of interrupted teleology that, by the same token, interrupts the received definitions of critique. It follows, among other things, that this reading cannot be another “critique of Kant.” It seems to me that a very plausible name for this “critique” radicalized qua critique by this inhibition or interruption with respect to doctrine might be “deconstruction.”

9. For Kant, “whatever the content of our cognition may be, and however it may be related to the object, the general though to be sure only negative condition of all our judgments whatsoever is that they do not contradict themselves; otherwise these judgments in themselves (even without regard to the object) are nothing” (CPR, A150/B190).

10. See my book Dudding: des noms de Rousseau (Paris: Galilée, 1991) for an analysis of the aporias of sovereignty in Rousseau, which give rise to the (necessarily aporetic) theory of the legislator.

11. “A right line (rectum), one that is straight, is opposed to one that is curved on the one hand and to one that is oblique on the other hand” (MM, introduction §E, 26). Recall the Lutheran image of the warped wood that man is made of according to the “Universal History” text. Our own reading here is probably more oblique than curved. See too Jacques Derrida, Du droit à la philosophie, 77–81; tr. Jan Plug as Who’s Afraid of Philosophy? Right to Philosophy 1, 45–48.

12. According to Kant’s logic, here we would have to say that there is always abuse of supreme power: Just because supreme power is always (transcendentally) legitimate, it is by that same fact (empirically) abusive. As in many of the situations we are analyzing (and exemplarily that of perpetual peace), this means that it is insufficient (but necessary, of course) to say that the legitimate State is simply an Idea of Reason to be approached asymptotically. Kant’s famous note on regicide (MM, 97n) concerns a crime that is in some ways simply the extension of the crime of asking the question of the sovereign legitimacy of the head of state. In a way that is not unlike Hegel’s famous analysis of enlightenment and terror in the Phenomenology, the attempt to shed light on the legitimacy of legitimacy leads to violence in that it cannot fail to render legitimacy illegitimate. This is what Kant, in the note, calls “a chasm that irretrievably swallows everything [ein alles ohne Wiederkehr verschlingender Abgrund]” (MM, 132). This chasm opens as soon as someone (for example, Kant) asks the question of the legitimacy of the head of state: He thus becomes a bit of a regicide, whence certain consequences we will follow a little later. This chasm or abyss (another version of the frontier) might also be connected to one of the privileged figures of the sublime in the third Critique (see, for example, CJ, §29, 153) but also to the Unübersehbare Kluft said to separate the world of nature and the world of freedom in the introduction to that work (CJ, 63).

13. To be compared to the secret at the basis of religion as described in The Conflict of the Faculties: “The biblical theologian as such cannot and need not prove that God Himself spoke through the Bible, since it is a matter of history [. . .] [Treating it] as a matter of faith, he will therefore base it—even for the scholar—on a certain (indemonstrable and inexplicable) feeling that the Bible is divine. But the question of the divine origin of the Bible (in the literal sense) must not be raised at all in public discourses directed to the people; since this is a scholarly matter, they would fail completely to understand it and, as a result, would only get entangled in impertinent speculations and doubts” (35–37). This would be the place to reread the analysis of the “mystical foundation of authority,” in Derrida’s “Force of Law,” and especially the following: “Since the origin of authority, the foundation or ground, the position of the law can’t by definition rest on anything but themselves, they are themselves a violence without ground. Which is not to say that they are in themselves unjust, in the sense of ‘illegal.’ They are neither legal nor illegal in their founding moment. They exceed the opposition between founded and unfounded, or between any foundationalism or anti-foundationalism. Even if the success of performatives that found law or right (for example, and this is more than an example, of a state as guarantor of a right) presupposes earlier conditions and conventions (for example in the national or international arena), the same ‘mystical’ limit will reappear at the supposed origin of said conditions, rules or conventions, and at the origin of their dominant interpretation” (34/14).

14. See Maurice Blanchot, “L’insurrection, la folie d’écrire,” in L’entretien infini (Paris: Gallimard, 1969), 336. I read Kant and Sade together as regards the revolution in “Forget to Remember: Remember to Forget: Sade avec Kant,” in my Open Book / Livre ouvert, 93–108 (CreateSpace, 2005).

15. See too in “Theory and Practice,” where there is also insistent appeal to the value of contradiction: “It is clear that these peoples [who have risen up in revolution] have done the greatest degree of wrong in seeking their rights in this way. [. . .] For such procedures, if made into a maxim, make all lawful constitutions insecure and produce a state of complete lawlessness (status naturalis) where all rights cease at least to be effectual” (KPW, 82).

16. This structure whereby, having crossed the frontier, one enters a new regime also has a more clearly negative aspect brought out in “What Is Enlightenment?”: “A revolution may well put an end to autocratic despotism and to rapacious or power-seeking oppression, but it will never produce a true reform in ways of thinking. Instead, new prejudices, like the ones they replaced, will serve as a leash to control the great unthinking mass” (KPW, 55).

17. A little earlier in the main text: “If, however, a more lawful constitution were attained by unlawful means, i.e. by a violent revolution resulting from a previous bad constitution, it would then no longer be permissible to lead the people back to the original one, even although everyone who had interfered with the old constitution by violence or conspiracy would rightly have been subject to the penalties of rebellion during the revolution itself” (KPW, 118).

18. It might be possible to argue for a similar reading of the categorical imperative itself: Rather than look forward to the formulation of laws, the import of the categorical imperative would, on this view, remain each time singular, always a purely formal test of this action and its maxim. On such a reading, the Hegelian objection from the Natural Law essay mentioned previously would simply become irrelevant. Pursuing this line of thought might bring Kant closer to Derrida, who argues for a radicalized version of duty such that not only is it morally insufficient to act in conformity with duty but even acting for the sake of duty, as Kant requires, still falls short. On Derrida’s view we must act out of duty (i.e., beyond duty) with an element of invention or contingency that is very germane to everything being argued here. See my essay “Deconstruction and Ethics,” in Interrupting Derrida (London: Routledge, 2000), 34–46.

19. “One wonders, too, where to have clothing commence. Where a parergon begins and ends. Whether any garment would be a parergon. G-strings and the like. What to do with absolutely transparent veils. And how to transpose the statement to painting. For example, Cranach’s Lucretia holds only a light band of transparent veil in front of her sex: where is the parergon?” (Jacques Derrida, The Truth in Painting, tr. Geoffrey Bennington and Ian McLeod [Chicago: University of Chicago Press, 1987], 57; tr. mod.).

20. From the first edition of Perpetual Peace, the title page indeed reads: “Zum ewigen Frieden. Ein philosophischer Entwurf. Von Immanuel Kant.” Like Rousseau, Kant was proud of the fact that he signed his work. See The Conflict of the Faculties, 11: “I sign my name to all my writings, so that I cannot be accused of using underhanded means.”

21. See Jean-Luc Nancy, “Lapsus judicii,” in L’impératif catégorique, 35–60 (Paris: Aubier-Flammarion, 1983).

22. Posited by Epicurus in the letter to Pythocles, as quoted by Diogenes Laertius in book 10 §§88–89) of The Lives and Opinions of Eminent Philosophers: “A world is a circumscribed portion of the universe, which contains stars and earth and all other visible things, cut off from the infinite, and terminating in a boundary which may be either thick or thin, a boundary whose dissolution will bring about the wreck of all within it, in an exterior which may either revolve or be at rest, and be round or triangular or of any other shape whatever. All these alternatives are possible: they are contradicted by none of the facts in this world, in which an extremity can nowhere be discerned. That there is an infinite number of such worlds can be perceived, and that such a world may arise in a world or in one of the intermundia (by which term we mean the spaces between worlds) in a tolerably empty space and not, as some maintain, in a vast space perfectly clear and void” (tr. R. D. Hicks [Cambridge, MA: Harvard University Press, 1925], 617–19).

23. Having mentioned these pages in a note, Derrida says: “No need to insist: what is at stake in the three pages that follow is quite simply vertiginous” (Du droit à la philosophie, 87n/199n: to my knowledge, Derrida nowhere develops a reading of these pages, however).

24. For an analysis of a very particular instance of this case, see my article “ ‘Ces petits différends: ‘Lyotard and Horace,” in Legislations: The Politics of Deconstruction, 152–71.

25. The other example of Kant’s invoking the law of necessity is no less dramatic than the others, to the point of being not only exceptional but about the exception, the state of exception that, according to Carl Schmitt, who is perhaps not as far from Kant as one might suppose, is definitional of sovereignty as such. Again in the “Doctrine of Right,” Kant is justifying, contra Beccaria, the use of the death penalty for murderers and their accomplices but stumbles on the possibility of having to execute everybody: “If, however, the number of accomplices (correi) to such a deed is so great that the state, in order to have no such criminals in it, could soon find itself without subjects; and if the state still does not want to dissolve, that is, to pass over into the state of nature, which is far worse because there is no external justice at all in it (and if it especially does not want to dull the people’s feeling by the spectacle of a slaughterhouse), then the sovereign must also have it in his power, in this case of necessity (casus necessitatis), to assume the role of judge (to represent him) and pronounce a judgment that decrees for the criminals a sentence other than capital punishment, such as deportation, which still preserves the population. This cannot be done in accordance with public law, but it can be done by an executive decree, that is, by an act of the right of majesty which, as clemency, can always be exercised only in individual cases” (MM, 107–8).

26. In “What Is Enlightenment?,” just before the “paradox” of a lesser civil freedom allowing for a greater intellectual freedom: “But only a ruler who is himself enlightened and has no fear of phantoms, yet who likewise has at hand a well-disciplined and numerous army to guarantee public security, may say what no republic would dare to say: Argue as much as you like and about whatever you like, but obey!” (KPW, 59).