Kant on Law and State from the Cosmopolitan Point of View

Abstract

Nowadays, the primarily philosophical Kantian idea of the cosmopolitan law has in fact been transformed into a dynamic system of international law that still remains quite problematic and in need of further development: for human rights not to be seen as an ideal or even utopia but as a positive law, as jus cogens, erga omnes. This contribution argues for a pragmatic reinterpretation in which Kant’s doctrine is construed as a functional theory of law and state and which shows that Kant becomes important for our times if one renounces speculative and metaphysical justifications. Kant’s theory of law is not a part of his moral philosophy, subordinated to it. There is no need for ethical justifications of the fact that there is law. Why there has to be law follows ex negativo from the same reasons for which the theory of law is a normative theory: the existence of law is grounded in the requirement that people ought to act rationally, even though de facto they frequently do not respond to this “ought”. Since this is not so, there is law, according to Kant, with its “entitlement to coercion”. Kant’s doctrine of law does have an ethical dimension in which it is to be established what law and state should be like – that is, at which values they should aim – but law, in his theory, takes priority over morality in establishing legal cosmopolitan relations.