Res Publica Noumenon

The two problems firmly posited for investigation by Kant's political philosophy were, first, the fact of the Revolution and its relationship to a new republican legal order as a dilemma and, second, the possible structure of the Republic . Concerning the characterization of the "fact of the revolution," a surprising harmony prevailed between Kant and Robespierre. In the trial of the king, the lawyer of Arras tore to pieces the legal double-talk of his colleagues in the Convention with a single brutal gesture. Enough of the legal farce, he brusquely demanded. This is not a trial, you are not judges, Louis is not an accused at the bar. You are revolutionary statesmen making an emergency decision on behalf of the Revolution. Taking an emergency measure of this kind means, Robespierre added, that we temporarily return to the state of nature in the act of destroying our enemy.^[12] Kant would have greatly appreciated (and perhaps he did) Robespierre's truthfulness, because this was precisely what Kant believed to be the truth about the fact of Revolution, and because truthfulness was an unconditional duty in his philosophy. With a brusqueness similar to Robespierre's, Kant stated in On the Common Saying that the revolution is status naturalis .^[13]

But at this point, the philosopher—observer and the revolutionary politician (who was also an amateurish philosopher of history) radically parted ways. The recognition that the Revolution meant a (presumably temporary) relapse into the state of nature prescribed a single course of action for Robespierre: those who make a revolution have to apply revolutionary measures regardless of the costs. For Kant, the recognition of the "natural character of the fact of the revolution" generated a deep, sometimes tragic, but for posterity always stimulating dilemma. On the one hand, the Revolution, as our relapse in the state of nature, as a "natural event," appeared to him as a cataclysm with a Janus-face in the phenomenal world. One of its faces, the one appearing in status naturalis , was horrifying. However, the well-known

dictum from The Strife of the Faculties shows us the smiling face of the same complex phenomenon. In this often-quoted place Kant was occupied in his usual manner with the problem of whether there is a single factum brutum , like the existence of mathematics for our faculty of knowledge or that of the moral law for our morality, that makes it possible to elaborate a theory of progress . And he found his fact in "this great public event," which, as a proof of the progress in nature , authorizes us to believe in the possibility of progress in the moral world.^[14] For the Revolution had proven indisputably that there is something in our phenomenal nature which rebels against despotism and shows affinity with freedom.^[15]

However, for Kant, unlike Robespierre, there was no simple transition from the natural to the moral—legal world, and he would have thrown away the maxim of Marat about "the tyranny of freedom" as a contemptible exercise in revolutionary Jesuitism. Even those who interpret Kant as a classic of liberal thought will find difficulties with his categorical denial of the right of a "lawful revolution" or rebellion. Indeed, resistance of any kind to a tyrannical authority, which is an accepted tenet of all liberal theories of government, is disallowed. This rejection of the theoretical possibility of a "lawful revolution" was repeated ad nauseam in his political writings of the 1790s.^[16] Kant emphasized that even the authority of that paragon of liberal transitions, the "glorious revolution" of 1688, had been based on a lie. The "constitutional agreement" on which the British regime had been resting until his own days, Kant remarked, had conveniently forgotten about the rebellion, and thus the usurpation of power, which had brought the new order of things to pass.^[17] If we add Kant's equally well-known proviso affirming the authority of the Revolution once it has consolidated itself into a legal order, an authority that is beyond appeal to the same extent as was its predecessor,^[18] Kant appears either as a legal stickler or a thinker of paradoxes, which would have been for him a brutal insult. And I find the thesis of Kant's self-censorship, as a supposed solution of the puzzle, more of a slander than an explanation.^[19] For Immanuel Kant could remain stubbornly silent when he was not able to speak what he regarded as truth.

Without being in agreement with Kant in the slightest, for I certainly do not believe that there is any moral—legal authority that can forbid people to rebel against tyranny, Kant's arguments seem to me neither inconsistent nor lacking in moral and political lessons. For Kant, the moral and legal worlds constituted a unity under the primacy of morality. Both were based on our freedom, and at the centerpoint of both there was duty, but in two different ways. Morality was the stricter domain because there our obligations were internal . Respect for the moral law, for the goal- and not just the meanscharacter of the other, had to be the actor's sole motive for the recognition of his act as properly moral. Legality allowed for more latitude. Here the legislator was not concerned with the actor's motives, only with his unconditional

compliance with the law. As a result of this unconditionality, Kant never ceased to emphasize the coercive (Zwang ) character of even those laws that had been passed in the most free agreement. As long as they are valid, we are subjected to them, we are subjects of the law . Only if we observe them unconditionally, that is, without making exceptions, do we show respect for the (good) maxims. Only thus can we raise ourselves from the mere phenomenal—natural to the noumenal, the properly human, genuinely free level.

This in itself would not be an absolute argument against the Revolution as an act of disrupting the chain of legality. For a revolution could also be a constitutive act, one of establishing new and better laws. And Kant was perfectly aware of both the despotic character of most laws up to his time and of the possibility and promise held out by new republican laws qua the completion of our ethisch—bürgerlich existence.

Moreover, his conception did not exclude absolutely, that is, for reasons of principle , the possibility of a "lawful revolution." There are at least three scenarios for this unlikely event, each of them having a certain kind of historical plausibility. The first is the abdication of the absolute prince on behalf of the "republic ." A strong argument can be made for Kant's interpretation of the transition in France from the Assembly of the Estates to the Constituent Assembly as the realization of this scenario. In terms of this version, Louis freely abdicated from his reign as absolute prince by the act of acquiescing to rule as a "caretaker sovereign," that is, the supreme executive. (This could be conceived of as a free decision by Louis despite the symbolic violent gesture of the masses, the storming of the Bastille, since he could have chosen, together with his brothers, the option of an immediate emigration.) A second scenario is the Posa—Philip story with a happy ending: the moral and political edification of the despotic ruler under the impact of the good advice given by a republican friend (where, it can be argued, entering into friendship, an equal and symmetrically reciprocal relationship with someone, is the prince's virtual starting point of self-reformation, his first "republican" act). And, in fact, this scenario was acted out in real life a few years later, in the court of Alexander I of Russia. But the fact is that the story in real life ended as negatively as in the theater. The difference was that in life it was also lacking in tragic grandeur. This result verified not only Schiller's but Kant's own skepticism toward the second possible Kantian scenario. For Kant invested incomparably more faith in public than private edification. A third, logical version of the "lawful revolution" was the possibility that an absolute prince, facing the overwhelming forces of a foreign invasion, turns to the populace and expects such miracles from the citizens ' zeal as could not be expected from the subjects' devotion. On this basis, the prince would grant them some kind of a constitution, which is what happened under the "hundred days' rule" of Napoleon.

But skeptical as Kant always remained concerning our phenomenal na-

ture, he foresaw at this point the more than latent possibility of a great and perhaps irretrievable historical catastrophe. In his Anthropology , he made a four-tiered typology of all possible human regimes that could be established after we had left the state of "wildness" tantamount to "independence from laws." This stage is confinement to the natural domain, a not yet properly human existence. The types are the following: anarchy (law and freedom without power); despotism (law and power without freedom); republic (a combined rule of power, law, and freedom); and finally barbarism (power qua violence without either law or freedom).^[20] For Kant only two of these scenarios, the despotic, our long common past state of affairs, and the republican, our future and possible emancipation from tutelage, may have been the genuinely historic types of societal order. He was convinced that we could neither relapse into "wildness" (since we had long lost our innocent ignorance) nor lastingly live in anarchy.

But how about barbarism? According to my hypothesis, the lasting rule of power as permanent violence without laws and freedom suddenly appeared on Kant's historical horizon under the impact of the French revolutionary drama. He witnessed the consecutive waves of creating and then almost immediately bending or shelving laws, a process that would have generated the atmosphere of an operetta had it not been for the blood dripping from the actors. Kant saw enthusiasm publicly degrading itself into a pathological passion and solemn declarations about universal freedom linked with the immediate and flagrant violation of the liberties of whole human groups. He watched as the centrality of freedom was replaced with that of happiness (a change of principles that he particularly detested and from which he expected the worst possible outcome).^[21] He heard the dithyrambs chanted collectively in praise of violence and the relapse in the state of nature which was confirmed by deliberately plunging revolutionary France into war. For Kant, this was the penultimate crime a free people could commit against itself and the rest of the world. The sight of all this filled Kant with the gloomy foreboding that the Revolution could destroy itself. This perspective was not excessively frightening for Kant since he believed that that "great public event," the fact of progress in nature, would never be forgotten.^[22] What he dreaded most was the example set by the moral suicide of a nation that perpetuated lawlessness and raised the violation of the maxim to the rank of virtue. In Kant's terms this choosing of the evil maxim could uproot even the bases of freedom in itself and would offer the worst possible example for the world.

It was Kant's great disciple, Schiller, who, in his celebrated Letters on the Aesthetic Education of Man , almost simultaneously with the master's publicly raised doubts and fears, developed the radically modern category of barbarism as the pathology of our culture.^[23] And Schiller only drew the conclusions from Kant's premises in his pathomorphology. The Revolution had failed,

Schiller concluded more apodictically than Kant himself would have spoken, because it had brought into the political arena not free men but the helots of our civilization. The demons of unsatisfied needs and the cultural cripples of the modern division of labor with their one-sided skills rushed on the scene to be endlessly manipulated by the demagogues. In Schiller's understanding, barbarism has nothing to do with the savagery of the primitives. It is a modern malaise, one that takes the refined form of pathological enthusiasm and feeds on evil maxims. Once the coercive force of law was removed for a single moment (here Schiller and Kant were on the same wavelength), there was a greater chance for our lasting and premeditated relapse into the "state of nature" than for the creation of the free republic. And a lasting and premeditated relapse into the state of nature is tantamount to barbarism . Hence Kant's inflexible verdict over every act of rebellion as high treason that deserves the ultimate penalty. Only when such an act is capable of organizing itself into the rule of law does it, by an unintended dialectic of history, deserve the same unquestionable authority as did its predecessors.

Those who grasp Kant's deep-seated anxiety about barbarism as the possible future of our civilization, an anxiety triggered by the scenes of the Revolution, will have a better understanding of what Marx called die deutsche Misère than did the German left of the 1840s, which coined the term and explained the phenomenon as the result of the "spinelessness" of the German bourgeoisie and of the philosophers who were supposed to represent this bourgeoisie.

On this basis, we can also better understand Kant's categorical condemnation of the trial of the king. Since I have set forth my views extensively in a debate with Michael Walzer, I will only briefly return to the issue.^[24] For Kant, just as for Robespierre, the legal conviction of a king for his past reign was perfect nonsense and therefore, Kant added, a crime in the highest degree. (It was for him an even greater nonsense and a more monstrous crime in the case of a monarch who, after having reigned as an absolute prince, accepted to rule as the supreme executive.) Kant was of two minds even on the issue whether or not a monarch, forced into the status of a citizen, was morally and legally authorized to make attempts at regaining his former power. In this respect, his statements are contradictory, although he did not hesitate to condemn almost every attempt at a foreign intervention on the basis of Völkerrecht .^[25] Moreover, Kant was, correctly, convinced that the Constituent Assembly had been usurping the king's supreme executive power, which was an additional reason for the monarch to resent his own undignified dependence.^[26] Kant was sufficiently realistic to accept violent acts as emergency measures (particularly in the state of nature) under the condition that those perpetrating them accept their responsibility for the crimes committed. As long as the perpetrators paid their due to truthfulness, the abstract chance for the tyrannical moralist to mend his ways still existed. But once an act

of murder was displayed publicly and proudly as supreme justice, the people had chosen the evil maxim , which was the most negative term in Kant's vocabulary.^[27]

And yet, Heine's and Marx's diagnosis was correct, even if their explanation of the phenomenon remained one-sided: die deutsche Misere did exist. The price Kant had to pay in his political philosophy for his own extraordinary sensitivity toward the future dangers of modernity was blocking his own way to the much-longed-for realm of freedom, the republic, by discounting popular action altogether . Kant repeatedly asserted in his political writings of the 1790s that the hope for (republican) change can come only from the top, not from the bottom. In the main, what remained, despite Kant's own skepticism about the scenario, was the politics of Don Carlos . True enough, Kant added one important recommendation to his idea of "reform from above": the thesis of the centrality and necessity of the public sphere . Kant thoroughly condemned every kind of politics based on a maxim that could not be made public . He even made explicit what kind of politics he had in mind: that of open contempt by the absolute prince for the populace based on a repulsive misanthropy. This maxim secretly exists but cannot be made public because it would trigger rebellion, Kant asserted.^[28] And although Kant's expectations concerning the "republican effects" of a free public sphere, especially concerning a free press , were legitimately high, they could not delete the marks of "German misery" from his work.

This limitation did not prevent Kant from stipulating the republic as at least a possible free future for humankind. The main issues of Kant's republican theory are the idea of a res publica noumenon ; the centrality of the representative system; the relationship of powers to each other in the republic; and the character and prerogatives of the sovereign in its capacity of chief executive.

The res publica noumenon as a regulative idea^[29] is much less abstract speculation than a Realpolitiker would assume. Had Sieyès been familiar with the problems behind it, he would have been thrilled by Kant's train of thought and would have found the German philosopher a thoroughly kindred spirit (as he had guessed in advance). Kant's major point here is the distinction between republic and democracy : the first was his regulative political idea, the second a profoundly problematic establishment. By way of explanation, Kant points to the only democracies he was familiar with (the American example apparently weighed very little for him): the ancient city democracies of Hellas. And in sharp contrast to the idealization of the ancients which was so typical for his age and his own generation, he found them repulsive rather than attractive models. Ancient city democracies, Kant averred, had either been despotic in themselves or they had ended up in despotism. They were not familiar with the idea and practice of representation , and therefore their political system was at the mercy of a constantly changing popular opinion as well as abandoned to outbursts of popular fury.^[30]

The great originality of Kant's political philosophy consists not merely in being the first to make the distinction between republic (qua the regulative idea of the free state in modernity) and "democracy" (as the latter's first and highly imperfect form of appearance on the political scene).^[31] Equally original was the other distinction logically following from the first, the distinction between the form of government and the forms of power .^[32] This second distinction is normally attributed to Max Weber by the history of theory.

Kant's distinction was more than a terminological clarification. It was a profound conception that had literally grown out of his dialogue with the French Revolution. Similarly to Kant, two representative actors of the Revolution, Sieyès and Robespierre, had contended before and during the crisis of Varennes that the appellation of the state was, as Kant put it seven years later, a mere matter of letters. But they had different (implicit or explicit) considerations in making the distinction between forms of government and forms of power. For Robespierre, the criterion of a state of political affairs to qualify as genuinely republican was, irrespective of the appellation of the form of government, le bonheur du peuple . We know how passionately Kant opposed putting happiness, instead of freedom, at the center of republican considerations. Therefore, although his recommendation was in formal harmony with Robespierre's thesis, substantively they were on a collision course.

However, Sieyès's argument would have been very close to Kant's mind. Sieyès, like Kant, was preoccupied with the ways genuine political freedom could be achieved in large and complex national bodies. In his meditations he had returned, once again like Kant, to Aristotle's tripartite division of powers or forms of government (the two concepts remained undistinguished in Aristotle). From Sieyès's conception the same deeply ingrained suspicion of the direct rule of the demos transpired as from Kant's political philosophy. Sieyès too had, for reasons similar to those of Kant (namely, both rejected the idea of corporations within a "republic"), a thorough aversion for bornagain aristocracies, meritocratic or commercial. This was one of the reasons why Sieyès, always a tacit and therefore surviving enemy of Jacobinism, never joined the Gironde. Despite these similarities, however, the distinction between the forms of government and the forms of power gained true theoretical lucidity and depth only in Kant's political philosophy.

It is common knowledge that, of the main revolutionary trends, both the Gironde and the Montagne deluded themselves into believing themselves to be either the born-again or the last Greeks and Romans in the modern theater of politics. For serious theoretical reasons, some of which have already been mentioned, Kant categorically refused to don the costume of the ancients. And in this refusal he was one with Sieyès, a completely modern and individualist political thinker, as well as with Constant, who made the first philosophical effort to distinguish the freedom of the ancients from that of the moderns. Their major reason for rejecting the ancient paradigm was their

understanding of the Greek and, to a degree, even the Roman democracy as a direct rule (power) of the demos (or plebs ) over the rest of the civitas . Sometimes this rule took legal forms. At other times, it was exercised through naked violence. But much too often it transpired as domination without general freedom. Sieyès, Constant, and Kant unanimously believed that freedom could be guaranteed by, and reside only in, a legally organized authority to which the citoyens actifs give their free consent but to which they are equally subjected without exception . However, we shall see that Kant, who happily went along with Sieyès and Constant as far as their thesis of a legal authority was concerned, parted ways with them when the question of the moral foundations of the republic was raised. In this case the ancient example became unexpectedly important for him.

The character and the function of the supreme executive was a source of great theoretical concern for Kant. His problem can be formulated in the following terms. To him, there seemed to be nothing sacred in the crucial process of legislation and therefore in the legislators themselves. They had the mandate of the people, and they had to do a job relying on reason, which was an exacting and complex but ultimately normal human task. But once the laws were passed and transferred to the supreme executive power whose function was their enforcement, the laws had to assume a sacred character in Kant's conception which demanded absolute obedience to them.

The sacred character of law, this product of human and this-worldly legislators, posed the following problem for Kant with regard to the supreme executive. If the person whose task is to enforce the sacred laws is a mere agent of the state, how can the sacred character of the laws be ascertained from such a prosaic figure? If he is more than an agent, what will distinguish him from the well-known figure of the prince? This dilemma, never resolved by Kant, caused a certain kind of terminological vacillation in his theory. For Kant, a critic of the term "popular sovereignty," the "sovereign" was identical with the chief executive. At times, Kant referred to this "sovereign" as "invisible," "the personified law," rather than as an agent. However, in discussing the conflict of Louis XVI with the Constituent Assembly and the usurpation of the executive power by the legislative, Kant treated "the sovereign" like an agent of the republic.^[33] This minor inconsistency was solved by Kant, to the degree that the problem could be solved at all within the horizon of his age, by his theory of the role of Vernunftsreligion and the "invisible church" in the republic. But this issue cannot be addressed here.