Toward a Peaceful Confederacy? (Lat. foidus pacificum)

According to Kant’s late work on the Principles of Politics (1793), the irreducible problem of the human species is the following: the human being is an animal and thus, to live peacefully with other animals of its kind, absolutely needs a master. However, this first proposition is immediately compounded by a second: “But this master is an animal too, and thus also requires a master” (ad infinitum).1 Here, in what could be called a regressive hypothesis, Kant establishes the original image of the sovereign as an animal who becomes a master or despot to himself.2 However, the specific form of animality that Kant refers to in this passage is the zoon politikon, since not all animals need masters; therefore, the specific form of animality that Kant has in mind to represent the human species is a domesticated animal. The master, the sovereign, is therefore an exceptional form of animality that belongs only to man, since man is an animal who domesticates himself through the production of his own sovereignty: “Where does man obtain this master? Nowhere but in the Human Race.”3 In other words, as Derrida has also argued, the “beast and the sovereign” are exceptions produced by a singular relation to freedom and to law, which can be said to be proper—or, rather, “peculiar” (idion)—only to the animal that “I AM.”4

This very paradox also constitutes the internal structure of the “state of exception” in the concept of sovereignty that we also find in Schmitt and Agamben but which is ultimately derived from the philosophy of Thomas Hobbes and is based on an extreme form of logical contradiction that is also found to be internal to the principle of sovereign right. At the same time, in the opening of the second part of his exposition, Kant clarifies that there is a logical need for the principle of the exception and resolves this contradiction (which actually pertains to the concept of equality) in the following manner. He writes:

The Sovereign or Supreme Ruler of the State is excepted, because he is regarded not as a mere Member of the Commonwealth, but as its Creator or Maintainer; and he alone has the Right to compel without being himself subject to compulsory Law. All, however, who live under Laws in a State, are its subjects; and, consequently, they are subjected to the compulsory Law, like all other members of the Commonwealth, one only, whether an individual Sovereign or a collective body, constituting the Supreme Head of the State, and as such being accepted as the medium through which alone all rightful coercion or compulsion can be exercised. For, should the Head of the State also be subject to compulsion, there would no longer be a Supreme Head, and the series of members subordinate and superordinate would go on upwards ad infinitum. Again, were there in the State two such powers as persons exempt from legal compulsion, neither of them would be subject to compulsory Laws, and as such the one could do no wrong to the other; which is impossible.5

What Kant describes in the above is, in fact, precisely the relation between two or more sovereign individuals of the nation-state, each of which appeal to their own right in a state of anarchy and freedom to go to war to protect their own right and, thus, continue to dwell in a state of nature, which is equivalent to the “concrete situation” of war. In the eighteenth-century arena of international relations determined by the right of nations, nations cannot be compelled or coerced to submit to the right of another state except through violence and war. As stated in the second definitive principle of his treatise Toward Perpetual Peace, written two years later, in 1795, Kant is clearly aware that he is stating a blatant contradiction in the concept of right that is embodied in the historical nation-state of his time. (I return to this below in great detail.) Therefore, as a rational principle, this notion of right is immediately unfounded as contradictory and illogical—the idea of political right as a form of reason that is not consistent with its own principle. Because it remains in an ontological state of being ungrounded, it is open to illegitimate and arbitrary appropriation by whatever form of sovereignty that appears to subtract its own right from this infinite movement of subordination and superordination that is first of all caused by the lack of proper foundation of the law itself—that is, the very principle of right— and it is this exception that allows this being (whether an individual or a collective of individuals) to appear as if above the law.

Although Kant’s explanation of the sovereign state of exception appears to echo—or, more accurately, to prefigure—the explanation given by Schmitt (on whom Agamben depends for his own argument), for Kant, this is merely the natural condition of law, the principle from which neither Schmitt nor Agamben ever seem to depart, but not what he calls its “supernatural destination,” which is not to be reduced to the image of transcendence that the sovereign individual gives to himself (or even that “a people” give to themselves) by invoking a state of exception. In fact, the idea of a “supernatural destiny” does not immediately lead to a theological concept of sovereignty, although it might serve as the basis for a critique of the imperfect conception of sovereignty at the basis of both politics and religion, whether in the despotic or pastoral images of the sovereign as prince or God the father; in the revolutionary image of a people as the foundational basis of the nation; or, finally, even in the image of humanity itself. As Derrida also argues, it is precisely this lack of a proper foundation of law that will allow the principle of sovereign right to become self-critical, which is to say, contradictory, as when two claims of sovereignty confront each other and this conflict cannot be resolved by any recourse to positive law, as in the case of any universal claim to human rights.

In the passage that follows the definition of the form of sovereignty that is distinctive (or peculiar) to the human species, Kant goes on to speculate that there are other extraterrestrial species in the universe who have solved this dilemma of sovereignty, and “it may be the case that in those other planets every individual attains his destination in life, but with us it is otherwise, since we can only hope for this [destination] as a species.”6 Therefore, as he states elsewhere, it is only through the political constitution that the human species will be able to finally “work out” the eternal riddle of sovereignty, but this is a riddle or problem that can only be worked out as one species, and can never be resolved by multiple forms of sovereignty (individual or collective), which in Kant’s time would refer to the conflicting sovereignties of the nation-states but also, in the same moment, to the multiplication of races and peoples, since this would only refer again to a state of nature where two (or more) sovereign individuals confront each other “and neither would be subject to compulsory law, and as such neither could do any wrong to the other, which is impossible,” as Kant states above. And yet, this is a reformulation of the state of nature in Hobbes, which Kant defines as the state of war that actually defines the present moment and not some mythical past prior to the emergence of the idea of civil society and primarily in those vast and open spaces that exist between nations where there is no law (deserts, arctic wastelands, oceans, etc.) and thus no basis for any claim or recourse to justice as well. As Kant writes, “In this condition the Human Race will remain until it shall have worked itself . . . out of the existing chaos of its political relations.”7

Therefore, while the principle of sovereignty appears first in the natural order that codetermines the distinguishing and exceptional (and peculiar) characteristic of the animal that is man, the true principle of politics itself appears as the last to be practically worked completely through (durcharbeiten) for the entire human species (ironically echoing Marx’s later formulation of “a determination in the last instance”). Here, the term “worked out” (abverdiene) refers to the material and the corresponding knowledge (skill, or techne) that is exemplified by an artist who knows how to shape the material into a perfect form. In this case, as Kant says later, since “man is a crooked material that cannot be bent into a straight line,” the artist is nature (natura daedala rerum) who bends the material of man to her own design. Essentially, Kant revises the relationship between natural origin and historical end (Zweck) to support the argument that while law has a natural origin, it has a supernatural destination. In other words, the idea of sovereignty has a natural beginning (i.e., the sovereign is an animal who becomes a master) but a supernatural destination according to the idea of Providence (i.e., the “cosmo-political design of Nature”) that is sketched at the end of Principles of Politics.8 At the end of the eighteenth century, Kant locates the progress of our species as being located somewhere at a middle rung of perpetual progress; however, judging from the political events of the past two centuries, we might wonder if our species has fallen more than a few rungs on the ladder of perpetual progress—that is, if our species has not fallen off the ladder entirely. But already in view of the situation of colonialism even in Kant’s own time, which he completely anathematizes in Toward Perpetual Peace and other political writings of the last period,9 the ladder is very high and already appears impossible to climb, despite the fact there are some corners of the world where human beings enjoy a relative measure of rest and security—recalling the argument of the previous section, these relatively “peaceful” enclosures of humanity are fast becoming disproportionate to the “real hell in which most of the human population lives today.”10

Is there not a way of understanding what Kant is referring to as the “supernatural destination” of the human species as in some way related to Antelme’s own conscious certainty of the unity of the human species on the basis of his experience as a deportee and as a survivor of the camps in response to the SS fantasy that “it was their historical mission to change species, and when the mutation was happening too slowly, to kill”?11 As he writes:

For in fact everything happens in that world [that is, of that fantasy] as though there were a number of species, or, rather, as though belonging to a single species wasn’t certain, as though you could join the species or leave it, could be halfway in or belong to it fully, or never belong to it, try as you might for generations, divisions into races and classes being the canon of the species and sustaining the axiom that we’re always prepared to use as our ultimate line of defense: “They aren’t people like us.”12

Contrary to most of the political and moral philosophy that has been written in the post-war period, the condition of this certainty would also disqualify any moral pretension that the SS were also not people like us; rather, “the SS are only men like ourselves.”

If, at the moment when the distance between beings is at its greatest, at the moment when the subjugation of some and the power of others have attained such limits as to seem frozen into some supernatural distinction; if facing nature, or facing death, we can perceive no substantial difference between the SS and ourselves, then we have to say that there is only one human race.13

Consequently, like Antelme’s negative conception of friendship, for Kant, the idea of humanity may have no positive (i.e., moral) value but remains the name of that proper impossibility that belongs to the idea of the political, which is to say, of a final (cosmo)political constitution of the human species.

Begin, then, as he may, it is not easy to see how he can procure a supreme Authority over public justice that would be essentially just, whether such an authority may be sought in a single person or in a society of many selected persons. The highest authority has to be just in itself, and yet to be a man. This problem, is, therefore, the most difficult of its kind; and, indeed, its perfect solution is impossible. Out of such crooked material as man is made of, nothing can be hammered quite straight. So it is only an approximation to this Idea that is imposed upon us by Nature. It further follows that this problem is the last to be practically worked out, because it requires correct conceptions of the nature of a possible Constitution, great experience founded on the practice of ages, and above all a good will prepared for the reception of the solution. But these three conditions could not easily be found together; and if they are found it can only be very late in time, and after many attempts to solve the problem had been made in vain.14

If we seemed to have arrived at a point of impasse in imagining a concept of the political that would be capable of encompassing the entire species—that is, “in the last instance”—this would either become the occasion of abandoning the concept of politics altogether (as either impossible or certainly unrealizable) or of affirming this impossibility itself as the most proper impossibility that belongs to the animal that is man. The first option, of course, has already been taken up and justified by a neoliberal principle of society that has surrendered (literally handed over) any political ideal of the unity of the species to the unconscious principle of pure market relations—that is, to an economic determination of man “in the final instance,” what Foucault has named homo economicus.15 The second option has been taken up by several contemporary philosophies (Derrida, especially, but also Agamben) that grasp this form of negativity that remains in every sovereign claim to a political principle as a supremely “critical” form of historico-philosophical reflection, one that still remains nonetheless open to the possibility of a “new politics”: either one that is no longer founded on the inclusion/exclusion of zoē in bios but that “remains largely to be invented,” according to Agamben’s claim,16 or one that Derrida often invokes as a “democracy to come” (à venir) but remains only in the form of a “promise”—and remains despite every negative assertion or evidence to the contrary—yet still remains somehow the “property of man.” Of course, there are other options out there as well, which could be categorized as metapolitical concepts such as “the idea of communism” (albeit a communism without politics) or of “absolute democracy” (albeit a democracy without a state). However, from the perspective of a critical philosophy that might still be worthy of the name, these can only be viewed as “transcendental illusions”—that is to say, the most recent failures of our faculties (and the sublime failure of the imagination in particular) to empirically determine the idea of the complete political constitution of the human species.

Returning to the second option, perhaps this is nowhere more eloquently stated than in the following lengthy passage from The Beast and the Sovereign on the principle of sovereignty itself:

[If sovereignty is, indeed, defined as the proper of man,] it is nonetheless also in the name of man, the humanity of man, the dignity of man [that is to say, recalling Benveniste’s analysis of the institution of hospitality, an appeal to aidṓs], therefore a certain proper of man, that a certain modernity has begun to question, to undermine, to put into crisis nation-state sovereignty. Every time one refers to the universality of human rights (beyond the rights of man and citizen), every time one invokes the recent concept (1945) of crime against humanity or genocide, in order to implement an international right or even an international penal tribunal, or even humanitarian actions the initiative for which is taken by NGOs (nongovernmental organizations), every time one militates for the universal abolition of the death penalty, etc., then one is calling into question the principle and the authority of the sovereignty of the nation-state, and doing so in the name of man, the right of man, the proper of man. It is in the name of a certain proper of man, which sometimes remains, so I believe, completely to be thought, merely promised to a thought which does not yet think what it thinks it thinks and that the doxa accredits with a firmness matched only by its naïveté, it is in the name of a certain supposed proper of man, of the humanity of man, that one limits, delimits, and circumscribes, even beats back, combats, and denounces the sovereignty of the nation-state. I’m careful to say the sovereignty of the state and the nation-state, for the humanity of man or of the human person invoked by human rights or the concept of crime against humanity, by international right or the international penal agencies—all these agencies might well be invoking another sovereignty, the sovereignty of man himself, of the very being of man himself (ipse, ipsissimus) above and beyond and before state or nation-state sovereignty.17

Here we have the eternal claim of a higher sovereignty, humanity, that nevertheless remains “promised to a thought which does not yet think what it thinks it thinks and that the doxa accredits with a firmness matched only by its naïveté”; the claim that “the highest authority has to be just in itself, and yet to be a man.”18 In this regard, Derrida seems to agree with Kant—and this is the entire basis of his long argument with Schmitt (who I have called the natural lawyer of our time)—that the mastery or sovereignty that is proper to man is not the natural sovereignty of he who decides the state of exception but rather it refers to the possibility of an infinite superordination of the principle of sovereignty that will prove, in turn, to unfound any claim by a historical representative, thus opening it to an intense questioning. And yet, this power of questioning is only possible on the condition of a prior refusal to an external “Will,” since as Kant writes, “there can be nothing more dreadful than that the actions of one person are placed under the Will of another.”19 Recalling the statement by Antelme, this is another sovereign power that is first expressed by the conscious refusal of the order of a master—that is, the right to say no or, according to the Kantian phrase, “the right of Humanity in our own Person” (der Menschen). As an expression of its transcendental condition, however, this right can have no proper foundation in any positive law.

At this point, however, we must be careful not to lapse into yet another moral philosophy extolling the peaceful image of humanity, since this freedom from any positive order of law (whether just or unjust) that lies at the origin of the sovereign claim of exception also makes possible the power to refuse this order in the name of another form of sovereignty (e.g., in the name of humanity itself). In other words, it is the same principle of right that is led into a violent contradiction when two (or more) sovereign claims confront each other in absolute opposition. In such a case, neither claim can even be said to be “equal,” since this would presuppose a third principle of universality under which both claims could be measured—once again, a principle of right or justice guaranteed by the rule of law. Throughout this study I have evoked the two sovereign figures of the global rich and poor to refer to a “concrete situation” of war today, one that is being waged today outside any political constitution of government or juridical constitution of right, in the “war-zones” that grow and multiply each day: in the deserts that lie between the territorial nation-states and also within the global urban slums and the barrios south of the border or within the vast flows of human capital that exist virtually in the interstitial spaces of commercium. Again, recalling Antelme’s conclusion, today, the rich man can no longer be redeemed by his image of politics, and the poor man can no longer be justified by his image of sacredness. Both cloaks have been stripped away and the two sovereign figures of humanity that lie beneath have revealed themselves to be pure beasts, and there are no oaths (hórkia) between beasts, and thus no possible claim to the right of hospitality (aidṓs), recalling the line from Homer’s Achilles:

Do not propose an agreement. There are no pledges (hórkia pistá) between lions and men. The hearts of wolves and sheep do not beat in unison, but constantly do they devise evil for each other; “even so is it not possible for you and me to be in philótēs, and there will be no hórkia between us”: emè kaì sè philḗmenai oudé ti nō̄̂in hórkia éssontai (until one or the other is killed).20

It is in this “concrete situation” of war that an ever-growing demographic portion of humanity lives today, where there is neither rule of law nor any possibility of justice but rather an essential lawless field of battle, since neither claim can be founded on any principle of universal right, which is to say, neither in the name of humanity nor in the name of the prophet.

Derrida has addressed this worsening situation elsewhere under the term “globalatinization,” where he writes:

The task, therefore, seems all the more urgent and problematic (incalculable calculation of religion for our times) as the demographic disproportion will not cease henceforth to threaten external hegemony, leaving the latter no other stratagem other than internalization.21

Here, in other words, we are reminded of the strength of Schmitt’s accusation against the concept of humanity (Menschheit) as only the most cunning and hegemonic of modern concepts—like a wolf in sheep’s clothing—to be responsible for the modern neutralization of the political concept “in its purity”—that is, for the “depoliticization” (Entpolitisierung) of genuine state interests, which has proven to be especially useful as a technical instrument for the imperialist expansion or sim-ply as a “ruse of war.”22 Of course, Schmitt is absolutely correct, and Kant says as much also—that, empirically speaking, humanity is more of a devil than an angel—but the conceptual personage of the rogue (Schelm) is exclusively reserved for the race of masters who appear to claim the state of sovereign exception. For example, at the very same moment he was making this critique, Schmitt himself was in the process of expounding on the Nuremburg Laws, which he called “the constitution of freedom,” and adjudicating those Nazi racial concepts that could be applied to current case law, since “the legislation provides for the protection and the purity [here again, this word, and is there any wonder why Derrida absolutely detests its use in Schmitt?] of volkish blood.”23

Let us now return to the theme of impossibility, this time from a practical point of view. Actually, for Kant there are three distinct impossibilities, each of which corresponds to an idea of pure reason: the impossibility of eternal peace, the impossibility of universal friendship (or consensus of minds), and the impossibility of a universal political constitution of humanity under a common principle of law. Such a constitution can appear only as a regulative idea of a cosmopolitical constitution of man—that is, as the fourth idea of pure reason, which Kant later adds to the ideas that appear in the Critique of Pure Reason: God, world, and soul. For Kant, once again, humanity is a species that lies somewhere between animality and personality (or psychology), the latter of which is informed by the diversity of culture, geography, history, and political constitution. In each of these cases, Kant claims, the idea allows us to represent (problematically) the systematic unity toward which we aspire and that we presuppose in empirical studies or in practice. Again, unreal is taken here in a special sense of having a purely theoretical appearance (i.e., the soul cannot be empirically proven and the world cannot be viewed in one glance). For example, in accordance with the idea of God, we “consider every connection in the world according to principles [Principien] of a systematic unity, hence as if they had all arisen from one single all-encompassing being, as supreme and all-sufficient cause.”24 Of course, some might argue that the idea of God already contains the maximal extension of the concept of community and the idea of the soul the maximal intention of the concept of subjectivity (or psychology), but it is only the idea of politics that contains the maximal extension, over time, of the principle of right, law, or justice, and the concept of free will.

Impossible! Impossible!! Impossible!!! Given these three impossibilities, as he argues in Toward Perpetual Peace, the best “we” can hope for is a negative approximation of each idea in the form of a surrogate that at least preserves the idea until such time that a future race might finally have the knowledge, experience, and skill to “work it out” in practice. First, as a surrogate for an actual state of peace, it is perhaps only in the late philosophy of Kant that a notion of “peace” first emerges that is stripped of its earlier religious and cultural associations, as well as a relationship between strangers that is stripped of the sentimentality of friendship. Instead, Kant defines the concept of peace as the purely juridical character of a legal relationship between strangers that is not necessarily linked to an ethical or affective notion of friendship. This conception is stated in the first proposition that defines the nature and conditions of “Cosmo-political Right” (jus cosmipoliticum), where he defines “the rational idea of a peaceful, if not a friendly, universal community of all the Nations upon the earth that may come into active relations with each other, that is, a juridical principle, as distinguished from philanthropic or ethical principles.”25 In other words, contrary to all the misgivings held concerning the philosopher of Königsberg, even by dint of a sleepwalker, Kant recovered one of the original institutions of friendship (or hospitality) by founding the concept of political right neither on the private individual nor on the natural subject of the citizen of the nation but rather on the being of the stranger who we have argued throughout is determined strictly by statutory terms, meaning in Kant’s time as well as our own, since the term “peace” is strictly determined according to the rights of strangers under the principle of international law.

Second, as the negative surrogate for the idea of a complete political constitution of the human race (what some commentators have identified as Kant’s idea of a world government but usually according to the historical image of the totalitarian state), Kant proposes the “establishment of a surrogate” in the “Confederacy of Peace” (foidus pacificum), which later becomes the basic framework for the League of Nations. In the second definitive article, immediately preceding the article of universal hospitality, Kant specifically foresees the establishment of “an ever-growing STATE OF NATIONS, such as would at last embrace all of the Nations of the Earth.” But then he immediately goes on to outline the conditions of its failure:

But as the Nations, according to their ideas of international Right, will not have such a positive rational system, and consequently reject in fact (in thesi) what is right in theory (in hypothesi), it cannot be realized in this pure form. Hence, instead of the positive idea of a Universal Republic—if all is not to be lost—we shall have as result only the negative surrogate of a Federation of the States averting war, subsisting in an external union, and always extending itself over the world.26

However, Kant already predicts the failure of this surrogate in 1795 as he outlines the imperfections in international law in his own time—so now we have a fourth impossibility! The accuracy with which Kant predicts the failure of the current United Nations is equally uncanny and remarkable, which leads us immediately to Kant’s basic argument: in order for a positive system of international law to be established, first we must transform the concept of national right and, in particular, the rights of war (jus belli).

Before proceeding to this argument, however, let’s turn to read the first article, which outlines a practice that can be immediately prohibited by a strict conception of right (leges strictae): “No treaty of peace shall be regarded as valid, if made with the secret reservation of material for a future war.”27 A peace treaty (Freidensvertrag, pactum pacis) is regarded merely as a provisional instrument, or a contract between two or more parties, for ending current hostilities. Parties may enter into a contract with certain moral or practical reservations that they choose to hold in secret, first of all, because the nature of a contract is that it is always provisional and temporary, subject to changing circumstances outside the control and knowledge of the original framers, but more importantly, because no contract can become binding for all eternity without itself becoming a source of injustice for future peoples who were not party to the original agreement, as has often happened. Nevertheless, as Kant writes elsewhere, all legal treaties are endowed with an air of being sacred scripture, and it is the peculiarity of this instrument that protects it—and the participants—from falling into a state of blatant hypocrisy. Throughout the arguments of Toward Perpetual Peace, Kant often makes a distinction between the provisional state of peace occasioned by a treaty and a more permanent state of peace (as something approximating “eternal peace” on this earth and among human agents) that could only be brought about by the creation of a federation of free states, or by a “League of Peace” (feodus pacificum).

Practical or moral reservations aside, however, no treaty can be regarded as legally valid (gelten) in cases where one or more parties willingly and consciously enter into a sacred oath for peace all the while reserving the material (Stoffe) for future war. Here, the argument is based on the first principle of contract law: no contract can be held as valid (i.e., legal) if its very terms are self-contradictory so as to cancel each other out. There is also a logical, practical, and moral argument as well: logically speaking, a treaty that reserves the material for war is merely a truce; practically speaking, the treaty itself would be classified as material, since its secret reservation would be used as the very cause for resuming the war; and morally, the practical politicians “who craft such a duplicitous and publically misleading device” are accused in the gloss on the article of “Jesuitical casuistry” and of acting beneath the dignity of their public offices. Nevertheless, immediately following this moral argument there is the clause “If one judges the facts as they really are,” and here Kant is implicitly referring to actual persons of the state and historical treaties, even though the reference is oblique because Kant was already placed under an imperial censorship for his previous writings on religion a year earlier. In fact, the clause refers to the historical sovereigns of Fredrick the Great (1740–86) and his successor Fredrick Wilhelm II (1786–97), as well as to an actual incident where, after invading Silesia, Fredrick II engaged a certain “duplicitous minister” who crafted a treaty that he later praised for its duplicitousness as “the work of an excellent charlatan.”28 Kant himself likely had this treaty in mind when he referred to treaties that reserve material for future war, as well as to the “Jesuit casuistry” of those warmongering despots and rogues who “with indifference leave the justification of the war, for the sake of propriety, to the diplomatic corps, which is always ready to provide it.”29 However, the most severe condemnation comes later on in his version of the famous fiat justitia et pereat mundus against the perpetrators of “radical evil”: “Let righteousness prevail though all the rogues (Schelme) in the world should perish for it.”30

Turning now to the second definitive article, the historical and dramatic irony of this historical situation is nowhere more present than in the arguments against those Kant refers to as “the miserable comforters” (leidege Troster), here evoking the situation of Job before the empty consolations of his so-called friends. According to the legal theorist Georg Cavallar, the objects of Kant’s scorn (and the fictional representatives of Job’s coterie of false friends) are Hugo Grotius, Samuel von Pufendorf, and Emer de Vattel (henceforth called “the natural lawyers”) who defend—or at least accept as inevitable and in principle—the just right of nations to go to war (jus belli).31 Against the principles of what he regards as a “weak cosmopolitanism” that is eviscerated by the current notion of national right, Kant writes:

The depravity of human nature is exhibited without disguise in the unrestrained relations of the Nations to each other, whereas in the legalized state of Civil Society it is greatly veiled under the constraint of government. In view of it, we may well wonder that the word “Right” has not yet been entirely banished from the policy of war as pedantic, and that no State has as yet ventured to declare itself publicly in favor of that doctrine. For Grotius, Pufendorf, Vattel and the others—miserable comforters all of them!—are still always quoted cordially for the justification of an outbreak of war, although their philosophically or diplomatically composed codes have not, nor could have, the slightest legal force, since the States as such stand under no common legal constraint; and there is not an example of a State having been ever moved to desist from its purpose by arguments [i.e., by mere words], although armed with testimonies of such important men.32

Before developing Kant’s objections to the natural lawyers, let us first recall the situation of Job that is being evoked as a dramatic context for judging the different providential and moral explanations for Job’s extreme state of suffering, which is nothing less than the state of being a deportee and survivor of God’s cruel war against him. As we all know, Job was the richest man in the East. According to Elie Wiesel’s commentary on the Midrash, “He was rich, hospitable, friendly and giving; he invited strangers into his home without asking who they were or what the purpose of their visit might be. He welcomed the hungry and helped the poor, angels and beggars alike, offering them both shelter and food.”33 According to his divine accuser, however, Job’s virtues were merely the result of the fact that God has “placed a hedge around him, his family, and everything he has” (not unlike the security of the richest populations in the world today). In order to test this thesis, God agrees to allow the accuser to “wage war” on Job and his possessions; Job is stripped of everything and his children are put under the sword. Even his wife pleads with him to forgo his insane claim of innocence, “to curse God, and die!” At this point, Job’s three friends appear to mourn with Job and to comfort him; however, like the friends of Antelme, “when they arrived and saw Job from a distance, they could barely recognize him.”34

After seven days and nights when the group of friends sat together in dust and silence, finally the friends began speaking of Job’s situation. In the various arguments put forth, all Job’s friends raise in light of Job’s intolerable situation that God’s war against him must have been “just.” In response, Job refuses to relinquish his innocence before this supposed judgment of God and instead charges God with committing an injustice against him with his sovereign decision, and thus the discourses that ensue constitute a trial against God’s order, with Job now in the position of the accused and the friends quickly changing sides to appear as his prosecutors (just as friends often are the first to do in a time of distress). In his own defense, Job often describes “the voice from the whirlwind” (the sovereign) as a predatory animal, a lion that hunts him down and chews his flesh: “In his rage he hunted and caught me; he cracked my bones in his teeth. I was whole—he ripped me apart, chewed my body to pulp.” In the end, “the voice from the whirlwind” is revealed only as a God of nature, of storms and earthquakes, “king over all the proud beasts” equal to none, who speaks of his secret design, which Job’s accusers only smear with darkness, even though the voice will also confirm that all of Job’s accusations are true. At one point in the dialogue, Job even suggests that he is the victim of mistaken identity, of “friendly fire, and that God had simply mistaken the name of Job (Iyov) for the Hebrew name of enemy (Oyev).”

In the beginning of the second monologue, the voice protests: “I don’t confuse moments, or lightning bolts, or drops, or roots—and you are asking Me if I am confusing Iyov and Oyev, Job and Enemy!”35 Most importantly, the voice admits that treating Job as an enemy was unjust: “Am I wrong simply because you are right?” It is at this point that in response to the voice, Job chooses to remain silent, but this is neither the silence of piety or submission (as it has been interpreted by religious commentators) but rather the special claim to the right to immunity, the right to silence, which belongs to a special class of immunity, nemo tenetur se ipsum accusare (no man is bound to accuse himself), a subspecies of the sovereign right of exception. Moreover, Job’s silence can only be understood according to this right, especially given that the entire drama is framed within a legal–juridical context of a trial and even of a higher court of appeal that will hear Job’s case between mortals and this lower God at some later date; as Job cries, “Someday my witness would come; my avenger would read those words. He would plead for me in God’s court; he would stand up and vindicate my name.” Therefore, Job chooses to remain silent rather than to continue to plead his case before a lower court and thus refuses to incriminate himself before the law of a master who is merely an animal, of “the sovereign who is also a beast” (Derrida), and thus whose concept of right cannot be founded on any principle of justice.

I will not go further into all the arguments between Job and his “miserable comforters” and “false friends” that rehearse the different cosmological arguments that belong to this rich legal drama but instead I will return to Kant’s allegorical use of Job’s situation to illustrate his own arguments against the natural lawyers of his own time. The most damning criticism is that, like Job’s friends, the natural lawyers only respond to Job’s cry for the dignity and respect (aidṓs) of the victims by offering “mere arguments” and thus are implicitly responsible for the evil of Job’s situation by attempting to rationalize and thus to justify war. In other words, since war is a state of nature, there is no possible justice and, thus, no possible wrong; moreover, by justifying war one must ignore the state of injustice and the real suffering it causes to those who find themselves suddenly outside the hedges, deprived of all political rights. However, the one thing that the natural lawyers never question is the preemptory state of war itself, as a state that society would one day depart, but rather assume it is conclusive and thus a permanent condition of the sovereign right of nations. That is to say, “war is simply politics by other means.” According to Cavallar, while “the natural lawyers tend to paint a rosy picture of the state of nature, or international anarchy, for Kant this is a condition of permanent war, and he scolds the lawyers because they do not think it necessary to overcome this condition.”36 It is for this reason that Kant prefers Hobbes’s description over their own or even the moral outrage of Jean-Jacques Rousseau with his scenes of war, death, and agony, of ten thousand butchered men and the dead stacked in piles like cords of wood.

Just as at the end of the story of Job, where one man appears as superior to the sovereign, who is merely an animal or a ruler of animals in a state of nature and whose order has been shown to be lawless and arbitrary, lacking any principle of right except that which is grounded on a superior force (“might makes right”), so Kant also refuses that the right of war can in any way be justified by the principle of reason, either now or in the future. Hence:

The notion of a Right to go to war, cannot be properly conceived as an element in the Right of Nations. For it would be equivalent to a Right to determine what is just not by universal external laws limiting the freedom of every individual alike, but through one-sided maxims that operate by means of force. If such a Right be conceivable at all it would amount, in fact, to this: that in the case of men who are so disposed it is quite right for them to destroy and devour each other, and thus to find Perpetual Peace only in the wide grave which is to cover all the abomination of the deeds of violence and their authors! For States viewed in relation to each other, there can be only one way, according to reason, of emerging from that lawless condition which contains nothing but occasions of war.37

In response, Kant endorses “neither just war nor lawful war in due form, but juridical cosmopolitanism.”38 There can be no justice through war or during a state of war, which is a contradiction in terms, and thus no rightful concept of “just war.” In order to finally quit a state of nature, therefore, one must gradually remove all legal–juridical grounds as well as ethico-moral justifications for the right to war, including the idea of “just war.” At the same time, of course, Kant was also a pragmatist, so the gradual process of the creation of international laws that will interdict the nation-state’s right of war will take some time, perhaps even centuries, but will gradually arrive at a state approximating perpetual peace.

The moral or political irony of this situation is set forth in the secret article contained in the second supplement, which can be regarded as a third surrogate for the idea of peace (pax). It is thus detached from the main body of the public treatise that outlines the preliminary and definitive articles and rather offered as a secret pact. It reads: “The maxims of the philosophers regarding the conditions of the possibility of a public peace shall be taken into consideration by the States that are armed for war.”39 The reason for this secret article is that it may not be compatible with the dignity of certain persons to publicly acknowledge the origins of the idea of perpetual peace. The person to whom Kant refers is, however, not himself, since the philosopher is nowhere capable of dictating anything into law, but rather the contemporary statesmen and “practical politician” (the natural lawyer), who unfortunately holds the very idea with such contempt that they would never claim to be associated with it, much less acknowledge that perpetual peace is an idea first originated with him—that is, as the final “end” (Zweck) of politics and law. Therefore, “it can be said that the establishment of a universal and enduring peace is not just a part, but rather constitutes the whole, of the ultimate purpose of justice and Law (Rechtslehre) within the bounds of pure reason.”40 At the same time, however, since the ultimate purpose of perpetual peace is to serve as the practical idea of law, it must be disguised as theoretical and speculative and assigned to the philosopher only due to the statesman’s limitations (lack of experience, technical knowledge, and artistic skill according to the three conditions named earlier) for realizing this idea in human affairs. The philosopher thus functions merely as a historical surrogate, one whose purpose is to preserve the idea of perpetual peace by its secret cloak of its impossibility to realize in the present moment.

As Kant writes toward the conclusion of the Rechtslehre published two years after Toward Perpetual Peace: “If one cannot prove that a thing is, he may try to prove that it is not. And if he succeeds in doing neither (as is often the case), he may still ask whether it is in his interest to accept one alternative over the over hypothetically, from the theoretical or practical point of view.”41 As in his earlier response to Mendelssohn, Kant chooses the more positive hypothesis even though it can’t actually be proven—but then, as Kant observes, it cannot be disproven either and thus still remains an a priori idea of Reason. This remains a crucial point for Kant’s critical philosophy as well as his revision of the relationship between theory and practice, or theoretical and practical knowledge. Accordingly, concerning the idea of perpetual peace,

there is no longer any question as to whether perpetual peace is a reality or a fiction and whether we deceive ourselves if we assume in a theoretical judgment that it is real. We must, however, act as though perpetual peace were a reality, which perhaps it is not, by working for its establishment and for the kind of constitution that seems best adapted to bringing it about (perhaps some form of republicanism in every state), in order to bring perpetual peace and an end to the abominable practice of war, which up to now has been the chief purpose for which every state, without exception, has adapted its institutions. Even if the realization of this goal of abolishing war were to remain just a pious wish, we still would not be deceiving ourselves by adopting the maxim of working for it with unrelenting perseverance.42

Moreover, and this is perhaps the crucial point, to choose the other alternative would simply amount to condemning humanity to live in a permanent state of war and thus we would be compelled to agree with the natural lawyers that the idea of peace is merely a “sweet dream” of the philosophers, since the only peace to which “men in general” are destined as a species is the peace of the grave, a sentiment of fate that is echoed in the opening of Toward Perpetual Peace, where we have the satirical Dutch Innkeeper’s sign on which is painted “Vrede Eeuwige,” underneath the image of a graveyard.

In conclusion I now summarize the three historical or negative surrogates of perpetual peace, or of a universal political constitution we have discussed above: first, the treaty or compact of peace (pactum pacis) as a temporary or negative surrogate for the idea of a perpetual peace; second, the “Confederacy of Peace” (foidus pacificum) and later a federation of states (e.g., the League of Nations) as a negative surrogate for the idea of a world constitution; and third, the philosopher himself as a negative surrogate for the statesman—that is, to stand in for the absence of a subject whose duty would be to practically realize these former ideas in the areas of politics and law but that, in the historical limitations of the nation-state in Kant’s time (and also in our own!), would actually conflict with the hegemony of state power and thus the empirically determined ends of politics and law (e.g., war, territory, private property, accumulation of wealth, capital, etc.). Under this negative role, the contemporary political philosopher has but one duty, which we have already addressed in the quotation cited above: to act as if perpetual peace were a reality and “in accordance with the Idea of such an end, even if there is not the slightest theoretical probability that it is feasible, as long as its impossibility cannot be demonstrated either.”43 According to the Kantian definition of the duty of philosophy, therefore, the philosopher acts in the interest of pure reason alone (i.e., to preserve the idea of pure reason by giving its concept a maximal extension or intention through an assumption of its reality) rather than according to the empirical interest of morality, politics, or law. Of course this definition of philosophy has been criticized for some time and may not be the most current definition of the duty of philosophy today or the most recent conceptual persona of the philosopher, including the one Deleuze defines as “the friend of the concept.”

In fact, there are many competing images of philosophy and the philosopher, both historical and contemporary, many of which are at war with each other over the establishment of a dominant image of thought. The principle of war is not peculiar to the field of politics alone but also exists in philosophy through a principle of infinite competition, or rivalry of opinions (doxa); however, what may be peculiar to modern philosophy, perhaps in contradistinction to the Greek principle, is that modern philosophy has internalized the principle of war (pólemos) in order to project its own image of a “deterritorialized earth” and the principles of battle or combat to describe the movement of thought across this terrain in carrying out new sorties against an enemy who turns out to be humanity itself—who must finally be vanquished in the name of a new people and a newly reterritorialized earth created by militant philosophy, or political theology. Thus, as Deleuze and Guattari write, “philosophy is reterritorialized three times: on the Greeks in the past, on the modern democratic state in the present, and on a new people and a new earth in the future. Greeks and democrats are strangely deformed in the mirror of the future.”44 As I have already discussed in the introduction, we can certainly find this image of thought in the philosophies of Nietzsche and Marx as well as in the contemporary philosophies of Alain Badiou and Deleuze. What seems strangely absent from this field of battle, or what has been abdicated as the final goal of thinking, is any possible horizon of consensus, “peaceful accord,” or philosophical image of friendship. To paraphrase again the line earlier attributed to Hölderlin, since we have rejected the spirit of friendship that is first necessary for conversation or written exchange, today we find ourselves by our own hand outside thought.

Nevertheless, perhaps only by means of a reverse proof, I would argue that the Kantian image of the philosopher as surrogate continues to determine the subject of contemporary philosophy, and this can be easily demonstrated by referring to the image of an “end of politics” that appears in works of several philosophers, even in the most divergent philosophical systems, such as we find in the works of Agamben, Badiou, Derrida, Deleuze and Guattari, Negri, Jacques Rancière, and certainly Slavoj Žižek, perhaps the most famous of all contemporary philosophers. In each case, whether in their own primary writings or in the commentaries of their disciples, the conceptual personage of the philosopher continues to function as the negative surrogate of the practical politician, and the most dominant philosophies today are those that relentlessly pursue a “final end” by means of whatever image they choose to assign this end: an end to sovereignty, an end to politics, an end to capitalism, an end to democracy and/or totalitarianism, and end to all forms of racism and “speciesism.” And yet, there is one end that philosophy seems to have fallen strangely silent about, which is the end of war. It is for this reason that in this conclusion I continue to privilege the philosophy of Kant, who argued that it is only after we bring about the end of “the abominable practice of war” that we can even begin to pursue these other higher goals. Or perhaps it is only in the course of “working out” this first problem, even only theoretically, that the solutions to the other ends will eventually present themselves to thought through new possible intuitions and an awakened power to imagine a universal political constitution of the human race. Finally, it is only in the name of this final end, the “political determination of the human species in the last instance,” that a rule could even appear as the first principle of any future political philosophy, or what I have merely called “post-war philosophy,” and for which this study serves only as a prolegomena to future research.