Juridical = Ideal?

So, in my usual fashion I have completely neglected this blog. I arrived in Germany to work, and that is what I did. I, however, had to return home earlier than expected for personal reasons. So, I am back in good old Boulder and ready to blog again.

The stay in Germany was lovely, and I cannot say enough good things about B. Sharon Byrd and Joachim Hruschka. They are the most kind and supportive academics I have ever met, not to mention they are brilliant Kant scholars. We had such lovely conversations and dinners, and I truly miss them. If they weren't so far away... But, the silver lining is that I did download Skype onto Sharon's computer, so we can talk that way.

At any rate, enough of the personal. We are here to talk about Kant, right?!

So what pearls of wisdom (or sources of confusion) does Kant hold for us today? I think I would like to ponder a bit about the nature of the juridical condition (this one is for you, Sharon).

By the bye to my few followers: if you are looking for an excellent book on Kant's Doctrine of Right, I highly suggest Byrd and Hruschka's new book. It is extremely well written, provocative in its arguments about the juridical/nonjuridical distinction and the three laws, and I am still pondering over their argument about Kant's table of contracts and the First Critique's categories. Do yourself a favor and bite the bullet and buy this book. Byrd and Hruschka. Kant's Doctrine of Right: A Commentary (Cambridge University Press, 2010).

What in particular am I referring to when I say that I am interested in the juridical condition? Well, I am thinking about the minimal conditions for Right. There must be judicial, legislative and executive authorities (and a public external coercive mechanism) for one to be in a juridical condition. And, it appears these are the basic conditions. Republics are, let's say, higher functioning juridical states. But, is this necessarily so? Is there a continuum of Right, say from basic minimal conditions to Republics, or are there no distinctions? Another way to think about this is:

All republics are juridical, but some juridical conditions are not republics.

The Kant scholar may be shaking her head right now, saying well of course there are degrees of right, and republics are the best. But, I want to press on this a little bit.

If a state is a despotism, it cannot be in a juridical condition. If a state is a tyranny, it too cannot be in a juridical condition. If a state has the three Kantian authorities mentioned above, it appears it is automatically a republic. Hence all republics are juridical, and all juridical conditions are republics.

Why? Well, doesn't Kant say that the legislative authority is there to formulate public laws, and that these public laws are only legitimate if they accord with the united will of the people. "Therefore only the concurring and united will of all, insofar as each decides the same thing for all and all for each, and so only the general united will of the people, can be legislative." Hmm...sounds like not just any old legislative authority will work.

Then think about the judiciary, probably the most important authority in this triumvirate. The judiciary must put a case before it, and judge whether the case is in accordance with the law (a law that was laid down via the united will of the people). The judiciary is neutral, external, and renders final and public judgments. There is no backdoor dealings for Kant's judges, let alone the question of political ideology...

Finally we have the executive. I won't say much here concerning this branch, as it is mostly an administrative authority. The executive must carry out the dictates of the court and create legal institutions at the direction of the legislature (Cf Byrd and Hruschka).

All of this leads me to believe that Kant is not discussing the minimal conditions for Right, but the ideal conditions for Right -- that is, a republic. (The idea of the state as such).

What are some of the implications of this? Well, I am still spit-balling. And, more will have to be said another day. Perhaps some of my devotees will be kind enough to brainstorm with me. Otherwise, I must be off. Other engagements await.

MKTC (More Kant to Come)

H

Erlangen

Hello all:

So, I have safely arrived in Nuremberg/Fuerth. I have procured the keys to my office at the University in Erlangen, and am shortly to leave to start my first day there. I hope to blog every day on the things I am working on, but for now, I must merely state my future plans.

Auf weider sehen,

H

Supreme Moral Emergencies

Well, it has been quite awhile since I last blogged. Life has definitely made things a bit busy, and as a result, my one outlet - Kantemplation - has flagged. Regardless, I am back with fervor and tenacity! Today's topic: Supreme Moral Emergencies.

Since I last blogged, I think I have found a way of giving the 'why and how' to Kant's permissive law. This is more than the mere "authorizing something that is otherwise impermissible." I think, and have argued, that the permissive law only applies when one is faced with a supreme moral emergency - a situation where reason is threatened with undermining itself. I have ample textual evidence for those of you interested, and I am in the stages of tweaking and editing to send out for publication if you are really that interested.

The topic for today is whether such a Supreme Moral Emergency (SME) could result in the international realm with regard to human rights violations. In other words, if the domestic condition can be so bad to trigger a permissive law to allow individuals to coerce others into a civil society, is this situation analogously present in the international system.

I suspect that most Kantians out there are now pulling their hair out at such a question. "NO!", they say. "Absolutely not!" adds another. Well, think about this: Kant was a man. A brilliant man, no doubt, but a man situated in his time and place. I think that Kant was assuming 2 things in his arguments about coercing states into cosmopolitan institutions or states...

I'll only talk about one of them here: the threat of external war. Kant assumed, explicitly, that the biggest threat to the rights of citizens came from external war. We have Perpetual Peace and the 5th Definitive Article, we have countless musings in the Doctrine of Right... but here is the rub. Political scientists have consistently found that the biggest threat of war in the past 100+ years is internal -- that is civil -- war. It is 5X more likely, and many, many more lives are lost to it. (Thanks Fearon and Latin...)

At any rate, if the assumption that the threat comes from the outside is false...perhaps intervention isn't such a horrible thing anymore. Moreover, if the domestic state is so awful that it is consistently devolving back into civil strife....well... need I say more?

In any event, I think there must be something at work that proves that Kant's arguments - while insightful and logically coherent -- are not completely applicable today. We as good Kantians must rise up! We must take the mantel... we must take the spirit of Kant's writings and find solutions for today's (and possibly tomorrow's) problems.

So, the permissive law is necessary -- and human rights violations seem to present us with a case of why a permissive law may be at work for transnational justice.

TTFN-

H