Right now I am pondering a couple of things. Can you guess about what? Oh yes, back to the permissive law I go! But these are also thoughts about Kantian international right in general too.
Let's go with the easier topics first, shall we? So, Kant claims that states ought to be viewed as "moral persons," that is, they are capable of imputable actions. States can have agency, in the sense of that corporations have agency. They can be held responsible, morally (and perhaps legally). In several areas Kant makes note of a "domestic analogy" between domestic and international right. In this sense, states are analogous to individuals. Here is my question: how far can this hold on a Kantian domestic right view???
Here is my thought process:
For Kant freedom (external or juridical) is paramount. Well all freedom really, but for the sake of political theory, let's just go here. So actions that violate a person's external freedom are wrong. Kant is pretty "western liberal" here in terms of I can do actions that I want to as long as I don't hinder someone else's freedom. Kind of a proto-Millian, if you will.
So, it would seem that actions that harm myself may be legally permissible. They would not be morally so, as that would violate one formulation of the categorical imperative (respecting the humanity within oneself). But, legally, there may be no problem here. If you are hindering yourself, that is your choice. You are at no one else's will.
OK, so now let's think about the state as a moral person. What happens when state's "injure themselves"? Or, more specifically, if states have "moral personality" because of the fact that it is a collective of people (united by a general will) and that derives its significance from individual autonomy, then, what happens when a state injures its own population? It would, in a sense, be injuring itself, because it is injuring a portion or a constituent element of itself.
Most humanitarian intervention scholars posit that states lose their rights to nonintervention and forfeit sovereignty when they egregiously violate their citizens rights. In effect, when they injure themselves. Thus they are open to intervention, when intervention is otherwise prohibited.
But I want to know if this holds. Specifically in two ways:
1) if in domestic law we could not justify "intervening" or coercing an individual when she inflicts self harm, then can we do so internationally to states? Does the analogy really hold?
2) How does the logic work from popular sovereignty to state sovereignty? States have, it seems, two forms of sovereignty at work at all times. Internal (popular) with respect to the citizens, as the state is the supreme law maker, and (hopefully) the citizens have a say in the election of leaders, etc. Then, there is external sovereignty with respect to other states. The logic seems to work that states derive their inviolability and thus external sovereignty from their citizens (their internal), but as we very well know, many states do not actually treat their citizens all that well. Indeed, Kant knew this and was not afraid to posit it quite explicitly. So, if state's external sovereignty is contingent upon the governments upholding the rights of their citizens internally, then many, many states are open to intervention. But, Kant did NOT claim this. He said, at least in Perpetual Peace, that "no state shall forcibly interfere with the constitution or government of another state," a strict non-intervention principle that has nothing to do with contingency. I think Kant could actually justify intervention, but he will still have problems with consistency. But, more broadly than Kantian thought, can we really hold this "contingency factor" when it comes to the facts on the ground? The international system wants to champion this idea, but in reality, it pays little heed and states consistently violate rights, but states are VERY remiss to allow for a right of HI, let alone a duty. Hmm.
OK, so I was going to get to the trickier questions, but I believe I will have to wait. I think I also have some more answers, especially to question number 1, but have to be careful to put them out there, in case I get scooped.
Until next time...
H
