Inheritance, International Right and Kant (revised)

(This is much revised and enlarged version of my earlier post on the the right of nations and inheritance.)

Kant says that the right of the state (constitutional right within a state) leads inevitably to idea of the right of nations and to the idea of the right of all nations or the idea of cosmopolitan right. Kant suggests that if the principles of outer freedom falter in one area of public right, this puts the overall framework of right in danger. Why does the idea of the right of the state inevitably lead to the ideas of the other two? Or, why does the general idea of public right necessarily involve all three categories of public right?

(Kant says that this is so most directly in section 43 of the Metaphysics of Morals, but he also says something like this in first footnote to section II in Perpetual Peace)

One possible answer is that troubles abroad threaten security and liberties at home, and a state cannot maintain a democratic/republican constitution easily if it has hostile neighbors. The right of state demands a republican constitution. However, Kant says in perpetual peace that a ruler may delay the implementation of a republican constitution domestically if it is has enemies and requires a constitution that is prepared for war. This is a permissive law of sorts, that allows the ruler to delay reform until the time is right. And the time may only be right under conditions of peace with other nations, hence the need for international right. However, this seems to more about laws or nature than about right. It depends on a chain of mediated causation: the conditions requiring the immediate implementation of a republican constitution are not operative if there are foreign threats. The connection between the right of a state internally and international right is indirect, and mediated by empirical circumstances of a certain sort. I think there are other arguments in Kant's work based more directly on concepts of right.

Interesting, Kant says while a state is a commonwealth to its people, it appears as a power ("Macht") to others. Perhaps Kant is suggesting that for their assertion of power to be lawful, it will need to be more than just mere power. Legitimate coercion needs to be built on a common interest. For citizens of one state, they are subject to coercion through a common interest in being in a condition of right. (Their common interest is not their happiness per se; one cannot be coerced simply for their happiness.) Why they are coerced by their state, this is (or can be) seen as legitimate authority, in according with the original contract. State power over citizens is not merely might or power ("Macht"). Otherwise, why would they be bound to obey? In the introduction to the Metaphysics of Morals, Kant says I can be subject to laws only that I will; I must will these law either by myself or along with others. If the ruler wills something that the citizens of the state could not possibly have agreed to, then this fails the tests of legitimacy present in the idea of the original contract, whereby all citizens give up their lawless freedom for civil freedom, civil equality, and equal dependence on a common law. The original contract gives conditions for what can possibly constitute a common law.  (Note: Kant does not assume that a historical contract ever existed. The original contract is merely an idea of reason to test the legitimacy of laws. Also, the test of legitimacy refers not to how citizens might judge a matter now if asked , but to what they could possibly have consented to, if we conceive them as free and equal parties.)

Why do citizens care about how outsiders see them?  Perhaps citizens of one state cannot be secure in the enjoyment of their rights, if outsiders see it merely as a power. If different states do not exist in relations of right, there is state of war between them (whether or not there are active hostilities).

More strongly, their rights domestically are protected by the idea of right. If the ruler of the state renounces allegiance to right internationally, especially if on the basis of power, how can citizens be sure rulers will not assert their right to rule simply on the basis of power as well? There's all sorts of possible questions about what powers any state may have, given that outsiders are excluded.  (This could also apply to cosmopolitan right.)

However, we can go further. I would like to suggest an even stronger reason connecting the right of the state to international right and the right of all nations, or cosmopolitan right. This has to do with Kant's notion of inheritance.

Inheritance

In section 43 of the Metaphysics of Morals, where Kant says a state is called a power ("Macht") in its relations to other peoples, Kant also says that a state is also called a nation [stammvolk], because their union of members is presumably an inherited union. Here is the quote in English and German:

"In relation to other peoples, however, a state is called simply a power [Macht] (potentia) (hence the word potentate). Because the union of members is (presumed to be [anmaßlich]) one they inherited [angeerbter], a state is also called a nation [Stammvolk]  (gens). Hence, under the general concept of public right we are led to think not only of the right of a state but also of a right of nations (ius gentium)." (Gregor, p. 455)

"...in Verhältniß aber auf andere Völker eine Macht ( potentia ) schlechthin heißt (daher das Wort Potentaten), was sich auch wegen (anmaßlich) angeerbter Vereinigung ein Stammvolk ( gens ) nennt und so unter dem allgemeinen Begriffe des öffentlichen Rechts nicht bloß das Staats=, sondern auch ein Völkerrecht ( ius gentium ) zu denken Anla giebt..." (6:312 MM 43

It might be that Kant is just giving a reason why we have different names. But I want to pick up on the reference to the reference to an inherited union (angeerbter Vereinigung) being called a Stammvolk. However, why not just use the word "volk"? That would adequately translate people or nation. So it is worth discussing the meaning of Stammvolk, as it might suggest an original or aboriginal nation, as if the union had always existed.

Note: I am not saying Kant has an ethnic conception of the nation; it is a rather political conception of volk; the word volk had not acquired all the connotations in German it later would. Also, I am not suggesting he is thinking of "aboriginal peoples" as a type of cultural grouping; I am just suggested that the use of stammvolk rather than volk suggested that the union is presumed to stretched back to the depths of time. The civil union is presumed to aboriginal. What this means is that there is an implicit claim that the people of the land were the first or earliest to form a civil union there, and that contemporaries have inherited this civil union. This might form a basis for outsiders  to respect it as more than just a power.

I speculate Kant might have made a connection between inheritance and the right of states in relations to other states. Why, after all, does a present generation of fellow citizens have a right to the territory the state resides on, the fruits of previous economic and political actions, and the right to determine the country's future? Why do those born in the U.S. have a right to access this wealthy economic and political system? If he American civil union is (presumed to be) one they inherited, then we might use Kant's analysis of inheritance to think about global justice. I say more on the specifics of contemporary problems later. For now, I want to turn to what Kant says about inheritance.

Before discussing public right, Kant says how we might acquire possessory rights according to natural right. This is the section on private right, before Kant specifically discusses anything to do with nations or states. Most of the time, Kant is discusses how possessory rights of some sort can be acquired in the state of nature, according to natural right. However, sometimes Kant discusses natural law in private right with reference to future laws in the civil condition. This is so with inheritance.

In his discussion of private right in section 34 of the Metaphysics of Morals, Kant first talks about inheritance. He says that there is a natural law regarding inheritance, but this only means that we can tell from reason that a law about inheritance is fit for introduction into the civil condition. This does not mean we have a right of inheritance outside the civil condition. Kant notes that there is no right to an estate left to a person in a will until the bequester dies, because the person could always change his will. However, after the person dies, how is the property to be transferred? You cannot assume that the person would accept it. So, there is that moment when it seems that no one owns it, or at least that it is vacant. Something needs to fill that moment  (Otherwise, why is the estate not open to first taker?) Kant says the general will in civil condition fills that moment. It tells others to stay away from the estate; only one has the right to (choose to) inherit. Kant is showing how others can be bound to respect my right with regard to inheritance.

I haven't spelled out all the details precisely, but summary, these are the three important ones are: (1) the acquisition is ideal, as acquisition is from someone who no longer exists; what is acquired is not all the things left, but the right to choose whether to accept the legacy and everything with it, (2) there is moment where the legacy hovers, after the death of the person and before the legacy is accepted or repudiated by the hier, (3) the right to inherit can exist (be effective) only in the civil condition. (Though, again, he thinks natural right can tell us that this right is fit for introduction in the civil condition.)

The basic idea I have is this: if another state is seen merely as a power, it seems outsiders only have to respect it as much as prudence requires. However, if the civil union is one they have inherited, then other states can respect this inheritance, if there is a condition of public right. If inheritance can only exist in the civil condition, and states vis-a-vis each other are not in the civil condition, then how does each generation inherit the previous political community, claiming to have a special responsibility to look after its interests?  International right is the condition of right under which other are to respect to the moral personality of one state, and their inherited civil union (since moral personality is through time). So the right of the state requires international right.

Indeed, in section 53 of the Metaphysics of Morals, Kant begins his discussion of the right of nations by by saying:

As natives of a country, those who constitute a nation [volk] can be looked upon analogously to descendants of the same ancestors [Elterstamm] (congeniti) even though they are not. Yet in an intellectual sense and from the perspective of rights, since they are born of the same mother (the republic) they constitute as it were one family (gens natio), whose members (citizens of the state) are of equally high birth and do not mix with those who may live near them in a state of nature..." (6:343 MM 53, Gregor p. 382)

Die Menschen, welche ein Volk ausmachen, können als Landeseingeborne nach der Analogie der Erzeugung von einem gemeinschaftlichen Elterstamm ( congeniti ) vorgestellt werden, ob sie es gleich nicht sind: dennoch aber in intellectueller und rechtlicher Bedeutung, als von einer gemeinschaftlichen Mutter (der Republik) geboren, gleichsam eine Familie ( gens, natio ) ausmachen, deren Glieder (Staatsbürger) alle ebenbürtig sind und mit denen, die neben ihnen im Naturzustande leben möchten, als unedlen keine Vermischung eingehen...

I am curious about the term "Elterstamm" which Gregors translates as ancestors. I might be making a leap, suggesting it has some connection to Stammvolk.

To address a possible objection: There may be no need for an account of inheritance beyond the state, because states can be assumed to possess their territory just because they now possess it. However, I think it is helpful to consider the importance of the state a moral person, which implies an ongoing civil union (an inherited one).

There is also a passage about inheriting in Theory and Practice that is interesting. Kant writes:

Not a paternalistic but a patriotic government (imperium non paternale, sed patrioticum) is the only one that can be thought for human beings, who are capable of rights, and also with reference to the benevolence of the ruler. In a patriotic way of thinking everyone in a state (its head not excepted) regards the commonwealth as the maternal womb, or the country as the paternal land, from which and on which he has arisen and which he must also leave behind as a cherished pledge, only so as to consider himself authorized to protect its rights by laws of the common will but not to subject the use of it to his unconditional discretion. (8:291 TP II, Gregor 291-92)

Finally, inheritance may be relevant when considering states that have lost their territory, or even their moral personality, temporarily. In this regard, we might look at what Kant says before he mentions inheritance in section 34, and look at the previous section, section 33. This section also discusses a form of ideal acquisition, acquisition by prolonged possession. Kant says that whoever fails to publicly document his possessory claim loses it, if he does not use something for a while. If another possesses something for a while (in good faith), they become the possessor. The most the previous possessor can say was that he was once the true owner. Only in a civil condition can the state represent someone whose possessory act is interrupted, and preserve his right. Otherwise, there could be previous possessors that I would have no idea existed, and who could always possibly show up and deprive me of my property; this would contradict the permissive law of practical reason with regard to rights, the whole point of which is allow people to securely have private possessory rights.

In the second preliminary article, Kant forbids states acquiring states in certain maners. Indeed, he says a state cannot inherit a state because of the nature of the original contract, through which alone one has a right to rule people. However, as I mention, Kant says that the state involved people involved in thinking of themselves as descended from a common ancestor in an intellectual sense. This preserved the idea of moral personality, that the state or people as a whole has a moral personality that should be respected. Indeed, the second preliminary article of perpetual peace requires certain states to be restored (eventually at least) to their former condition as independent states. This means that their status as having an inherited civil union (their moral personality) continues in an intellectual sense. Simply being a "power" would not work, as they do not have the power. However, they can recover their rights, it seems (or rather, their rights should be restored to them). In this respect, Kant's thought on recovery in private right relevant, but that will have to wait until another day.