Polyamory, Gay Marriage and Kant

So, today I have been doing a bit of editing of my permissive law paper. In doing so, I was forced to examine a part of Kant's texts that typically gets dismissed: marriage.

I say this because scholars either write of Kant's musings about marriage as either prudish or backwards. But, aside from these worries, I am interested in the notion of marriage as a civil right -- something that gets a lot of press these days.

OK, so as far as gay marriage is concerned: we must first understand what Kant says about homosexuality. He calls it, not surprisingly, "unnatural" (6:277). One could be charitable to the old man and say that he is merely talking about "natural" in terms of men + women = babies. Or, we could look to the context and say that he was not a fan, as he mentions "unnatural" in the same sentence as bestiality, and in the next sentence calls such behavior "unmentionable vices". Personally, for the professor of Koenigsberg, who lived alone his entire life, never married, and was rumored to only have a picture of Rousseau (found in his home at the time of his death), I venture to guess that Herr Professor was himself gay. Either way, due to social mores, self-loathing or denial (or that I am wrong), he wrote this passage. So that does not bode well for my interpretation. Either way, let's move on.

We must, second, understand what marriage means for Kant. Marriage is the only arrangement where a person can "restore" one's "personality" (6:278). In other words, once a person is feeling all randy, that person wants to (typically) use another person as a means to her (or his) end. Sexual enjoyment is using another person as a means. This, of course is a no-no. We can't use people as a 'mere means', and so we have to figure out a way of getting around this predicament. Kant thinks it is through marriage. "There is only one condition under which this is possible: that while one person is acquired by the other a if it were a thing, the one who is acquired acquire the other in turn; for in this way each reclaims itself and restores its personality."

If we were to shelve the Kant's mention of 'unmentionable vices', then marriage between a man and a woman, a woman and a woman or a man and a man, seems justifiable because the use of each "other's sexual organs is enjoyment" and we have to make that enjoyment not demeaning of humanity in persons. To do this, the other person needs to 1) consent, and 2) "surrender completely". So on the premise of sexual enjoyment needs to be an act of "freedom" and respect I see no reason why gay marriage would be outlawed. Given his premise.

What about polyamory? Well, this is interesting. I think another sign that Kant is a product of his era. He automatically assumes it is a woman sharing a man. Instead of the various and sundry ways humans can partner. Moreover, such an unequal sharing makes her a thing. When we could view it from another point of view and think of him as being divided up and more likely the object. Another interesting point is that for Kant, marriage isn't just about sex. It is...not surprisingly...about property. Marriage is always about property. The history of marriage and controlling sexuality has always been about who can trace with certainty their descendants. (Why else would cheating on King Henry the VIII get you beheaded?) But, aside from this... Kant views marriages where one party holds all the property as nonexecutable contract! He likens such a situation as one that is tantamount to 'concubinage'. Interesting eh? Considering that for most of the history of the world women in marriage were legally regarded as children and thus not equal holders of property (which he also knew).

So what if, in a polyamorous relationship, all parties equally had access to each other and joint property rights (assuming the state granted it)? Wouldn't that satisfy Kant's worries?? Moreover, if acquiring a spouse is a right to a person akin to a right to a thing, then if we can have multiple children, why couldn't we have multiple partners? If it is conceptually the same right, and the other worries noted above are assuaged, then couldn't Kant support polyamory?

Perhaps, perhaps not. I tend to think if we address the background assumptions we can get there just fine. But, Kant's archaic and stilted views on homosexuality are still something we'd have to contend with... even in light of his love affair with Rousseau.

Perpetual Peace Preliminary Article IV and The American Debt Crisis

A few thoughts on the current state of American fiscal policy and Kant:

After seeing so much of the media frenzy I feel compelled to come back to my blog. A friend of mine, Scott, recently wrote on the debt ceiling crisis in his blog, and so it got me to thinking. As this little brain vomitorium is dedicated to Kant, I wonder what he would say about this whole "turn the world upside down and create pandemonium for the sake of a few stupid people" thing. Yes, I said it - stupid people. While the Michele Bachmanns may strike some as 'real Americans' with 'real American values', you will find no safe harbor for her or them here. The blatant and willful ignorance of this crowd will be the undoing of many... too many. In any event - here is a Kantian cheer to the Tea Partyers who cannot bring themselves to vote for a policy that will keep the world economy and millions of people safe and employed.

Kant's views about debt:

Well, we only have a few places where he talks about national debt, and the foremost amongst them is in Perpetual Peace. There he says in Preliminary Article 4:

4. "National Debts Shall Not Be Contracted with a View to the External Friction of States"

This expedient of seeking aid within or without the state is above suspicion when the purpose is domestic economy (e.g., the improvement of roads, new settlements, establishment of stores against unfruitful years, etc.). But as an opposing machine in the antagonism of powers, a credit system which grows beyond sight and which is yet a safe debt for the present requirements--because all the creditors do not require payment at one time--constitutes a dangerous money power. This ingenious invention of a commercial people [England] in this century is dangerous because it is a war treasure which exceeds the treasures of all other states; it cannot be exhausted except by default of taxes (which is inevitable), though it can be long delayed by the stimulus to trade which occurs through the reaction of credit on industry and commerce. This facility in making war, together with the inclination to do so on the part of rulers--an inclination which seems inborn in human nature--is thus a great hindrance to perpetual peace. Therefore, to forbid this credit system must be a preliminary article of perpetual peace all the more because it must eventually entangle many innocent states in the inevitable bankruptcy and openly harm them. They are therefore justified in allying themselves against such a state and its measures.

Or in more modern language:

4: ‘National debts are not to be incurred as an aid to the conduct of foreign policy.’

There’s nothing wrong with this way of seeking aid, within the state or from outside it, in support of the domestic economy— the improvement of roads, new settlements, creating reserve stores of commodities as insurance against unfruitful years, etc. But as a tool for use in the struggle of ·national· powers against each other, this credit system—the ingenious invention of a commercial people in the present century—is a dangerous kind of money-power. The debt it involves keeps growing, unnoticed, and the debtor state isn’t pulled up short by demands for repayment, because the creditors don’t all require payment at one time. ·And in time it grows to be· a war-chest bigger than those of all the other states combined. The only way it can get used up is through a loss of tax income [to pay the interest?]; that certainly will eventually happen, but it can be kept at bay for a long time because of the stimulus the credit system gives to industry and commerce ·and thus to tax revenues·. This ease in making war, together with rulers’ lust for power—something that seems inborn in human nature—is thus a great hindrance to perpetual peace. All the more reason why there should be a preliminary article of perpetual peace forbidding this credit system; and states that don’t use it are justified in combining against any state that does, because they will be harmed by their entanglement in that state’s inevitable bankruptcy.

So what does our illustrious teacher tell us? No. 1: National debts are, for the most part, off limits unless they are incurred for the common weal. That is, the general good of the public. But how have we incurred the debt we have? Was it to build roads? To buy up commodities for the 2012-ers who fear the end of the world? NO. It was to wage 2 wars. ENTER - Afghanistan and Iraq.

President G.W. Bush basically took our budget surplus and squandered it on breaks for his buddies, and wars that he felt were 'righteous'. Now, we are left with the economic fallout that is more deadly than a nuclear blast. Could Kant endorse this?

Again... a resounding NO. National debts are the backdoor way to undermine a state's freedom and autonomy. If this were purely an exercise in sticking to Kant's texts, we could judge that China's actions in the past 15-20 years of buying American debt has been such an example of a devious practice that Kant warns us about. Indeed, the notion that much of America is now owned by the Chinese is just the leverage and 'war chest' that China hopes to gain. However, this current crisis is even worse than that. Kant had no way of knowing that the international economy would become so intertwined that such a shock would mean devastation to all. He certainly hoped for global interconnectedness via trade -- as a mechanism for peaceful relations -- but this is not about choosing not to go to war against another country because both countries hold similar or close economic ties. This is a situation where a few myopic individuals are holding the world hostage -- and many people's pensions, livelihoods, and...lives hostage because of their narrow self-interest and ideological delusions.

If Kant could not endorse the actions of China in buying U.S. debt to hinder its freedom and autonomy, then Kant, I think it safe to say, he could also not endorse the actions of a small fraction of U.S. representatives and senators, all of whom are attempting to play chicken with the world economy, as the result is that all states' economic well-being and freedom would be undermined. So, Mr. Boehner, if you happen to be listening---

Do the right thing and not solely the right-wing thing, and make an adult decision and compromise.

I think Kant would praise that.

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

Kantian Inconsistencies

So, I am back from the UK and Europe. I have been back for a bit, as I had to come home early, but that was due to some health problems. Everything seems to be OK right now, but who knows..

At any rate, the conference was very interesting and I met some really nice people. Hopefully I can keep in contact, and I was even given a rave review by Gary Banham.

Seeing as how I am now back, and "back" in my writing/thinking space, I have started to tackle the permissive law (PL) again. I think I am onto something, but that is for another day -- and peer reviewed journal space. :-)

But, I think I cam across something rather interesting today while is search of evidence for my understanding of Kant's PL. Dare I expose my thoughts? Well...I'll do a little fancy footwork in the finished piece, but I think for now I can with some safety throw my ideas out there.

Here goes:

I was reading and working on the permissive law today, reviewing Perpetual Peace, and I was going through the last section on publicity, when it really dawned on me that all these discussions about Kant's inconsistency between TPP and the Metaphysics on the topic of publicity, are totally mistaken! I haven't seen anything like what I am about to say, but if it is out there, I would love to hear who and when and where...

This is what I have thought of today:

In relation to, let's call, the "small state preventive war problem," Kant does NOT contradict himself. Here is my interpretation.

When Kant considers the small aggressor state and its public maxim, he is doing so in a section of examples that highlight what he calls a possible "antinomy between politics and morality." He uses 3 examples to highlight this antinomy: the promise of one state to another to give aid, but the lending state cannot lend aid without causing harm to itself; a growth in power where a small state wages preventive war towards another state; a large state wants a contiguous state's territory for the large state's self-preservation.

In each of these examples, it appears there is an antinomy between politics and morality... but, Kant nowhere describes the antinomy. My reconstruction would run something like this:

Premise: Principle of Publicity, i.e. "all actions that affect the rights of other men are wrong if their maxim is not consistent with publicity."

Thesis: It is possible to will a maxim of publicity without being ineffectual.
Antithesis: It is not possible to will a maxim of publicity without being ineffectual.

Solution: Transcendental Principle of Publicity, i.e. "all maxims that require publicity (in order not to fail of their end [i.e. be effectual]) agree with both politics and morality."

This can only take place in a Kingdom of Ends --- or a condition of Perpetual Peace --- because only in a condition of true "public" right where all "states" remove the provisional status of the state of nature between states can true publicity of maxims become effectual. As long as "he who has decisively supreme power has no need to keep his maxims secret" remains possible, then we cannot will public maxims. The thesis corresponds to his Kingdom of Ends, or the intelligible world, the antithesis corresponds to the international system as we know it, or the empirical world.

The question then becomes whether we are given a permission to omit our maxims from public discourse because of this. This kind of "permissive law" business with the talk of reform, top down or otherwise, until the "time is right." I think, at first glance, yes.

Which would explain why in the Metaphysics section 56, at 6:346, Kant says "in the state of nature an attack by the lesser power is indeed legitimate," and before that says "the right to go to war (to engage in hostilities is the way in which a state is *permitted* [erlaubt] to prosecute its rights against another state." Gregor even footnotes: "In 'Toward Perpetual Peace,' however, Kant reaches the opposite conclusion by using his "principle of publicity."(footnote 34). I wonder if this is the problem of a cursory reading? Or Gregor's footnote?

I think I am going to run with this unless flagged otherwise by someone whom I respect and very familiar with this literature tells me "NO!".

RTG

Well, I am just about ready to head off to the UK and Germany.  I will be traveling to Lancaster, England to attend and present at the UK Kant Society conference, and then will be heading to Mainz, Germany to do some archival work at the Kantiana archives.  Should be good, but also like a needle in a haystack!  Then, I will head back to London to visit with my friend, Alex, and work with Katrin Flikschuh at the LSE for a couple of weeks.  

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