Élan Reisner

R/exlex


ISSUE 30 | THE DADDY ISSUE | JUL 2013

Naturally there were a lot of such observations. I was happy about them; they gave me a chance to whisper and have some fun. Sometimes you noticed and got angry, taking it for malice or disrespect, but believe me, they were nothing for me but a means (useless, by the way) of self-preservation; they were jokes like one spreads about gods and kings, jokes that are not only compatible with the deepest respect but actually belong to it.
—Franz Kafka, “Letter to his Father”

Moses Mendelssohn nicknamed Immanuel Kant “the all-crusher,” and it’s not hard to see why. In the Critique of Pure Reason (1781) Kant had demonstrated that the various answers philosophers had given throughout the ages to “metaphysical” questions (about God, freedom, immortality, etc.) were necessarily vacuous. No philosopher can lay claim to absolute authority on such matters because they lie beyond the limits of what can be known. This doesn’t mean that philosophy is impossible, but it does mean that until philosophy determines its proper bounds, its results will remain mere dogma (or doxa, in classical terms). The first task of philosophy is therefore to clarify the limits of knowledge and to investigate the subjective conditions that give rise to unanswerable questions. This entails a radical reorientation of thought, one which Kant likened to a second Copernican Revolution. Copernicus realized that progress in astronomy had been hindered by the assumption that the motion of the heavens is basically just as it appears (in orbit around the earth), whereas in reality it’s an optical illusion generated by the earthbound conditions of observation. In the same way (said Kant) philosophy must reorganize itself in accordance with the insight that objects of knowledge are conditioned in advance by the nature of cognition, whose laws are as little understood as were the laws of motion before Newton.

The Kantian Revolution had consequences well beyond the domain of epistemology. In the Critique of Practical Reason (1788) and the Critique of Judgment (1790), Kant applied his methods to the realms of morality and aesthetics (Kant called Rousseau “the Newton of the moral world”), and in his other writings he turned his critical attentions to fields as diverse as geology, anthropology, religion, and political theory.1 Indeed, it should come as no surprise that Kant was interested in contemporary political events. For many Enlightenment thinkers the French Revolution held out the promise of bringing the ascendency of reason to the political realm, and according to the testimony of some of his friends Kant remained a believer in the Revolution even after the Reign of Terror had disabused many of its early supporters of their initial optimism.

It is therefore all the more remarkable that in a long and fascinating footnote to his Doctrine of Right (1797), Kant describes his profound horror at the thought of Louis XVI's execution. After arguing against the so-called “rights” to sedition, rebellion, and tyrannicide—“any attempt whatsover at this is high treason (praedo eminens), and whoever commits such treason ought to be punished with nothing less than death for attempting to destroy the fatherland (parracida)”—Kant digresses on a crime so wrong that its consequences exceed rectification through punishment or pardon, infinitely transcending the bounds of its concrete occurrence. The mere thought of this crime invariably sends a shudder down the spine of anyone with the merest sense of justice:

Of all the atrocities involved in overthrowing a state by rebellion, the assassination of the monarch is not itself the worst … It is the formal execution of a monarch that strikes horror in a soul filled with the Idea of men’s rights [die mit Ideen des Menschenrechts erfüllete Seele mit einem Schaudern ergreift], a horror that one feels repeatedly as soon as and as often as one thinks of such scenes as the fate of Charles I or Louis XVI … It is regarded as a crime that remains forever and can never be expiated [ausgetilgt: obliterated] (crimen immortale, inexpiable), and it seems to be like what theologians call the sin that cannot be forgiven either in this world or the next … Like a chasm that irretrievably swallows everything, the execution of a monarch seems to be a crime from which the people cannot be absolved, for it is as if the state commits suicide …

What led the all-crusher of metaphysics and champion of enlightened autonomy to condemn the execution of a tyrant, and to do so, moreover, in theological terms?

To begin clarifying these matters, it is helpful to familiarize ourselves with the logic that predominated in the trial of Louis XVI. The members of the 1792 National Convention who wanted the king killed had to find a way around the fact that the Constitution of 1791 had declared him legally inviolable. Ingeniously, Robespierre and his fellow Montagnards argued that it was the king’s very inviolability that demanded his death. For if inviolability places one “beyond” the law, then in the eyes of the state anyone who claims to be inviolable must be considered a literal outlaw (hors-la-loi, exlex), that is, an enemy of the state as such. And according to the ideology of the Montagnards, who saw their task as the restoration of a quasi-Rousseauean state of nature, this entailed an unnaturalness that could only be purified through annihilation. The legal term for this sort of criminal (inherited from Roman law and invoked variously throughout the ages against tyrants, savages, brigands, and pirates) was hostis humani generis, “enemy of mankind.” Interestingly, this conflation of the enemy of nature with the enemy of mankind contradicts the other main signification of the formula. As early as Saint Ambrose, the formula also began to be used as a name for the devil (along with malorum radix, “the root of evil,” but more in that later). But the devil is an enemy of mankind who is essentially allied with nature. Unlike the fallen king, who threatens mankind by blocking its return (revolution) to a natural state, the fallen angel threatens mankind by appealing to its baser, “natural” instincts.2

Now, inasmuch as Kant’s horror at the execution of Louis XVI indicates a belief in the monarch’s necessary inviolability, his view is precisely the one that Robespierre turned on its head to justify regicide. Indeed Robespierre’s and Kant’s seem nearly diametrically opposed. This becomes especially apparent when one considers their respective positions on capital punishment. As is well known, Robespierre—the man who orchestrated the execution of Louis the XVI—was also an outspoken critic of capital punishment. In a similar but opposite manner, Kant considered the life of a monarch absolutely sacrosanct, and yet firmly believed in the necessity of the capital punishment for certain crimes (on strictly retributive grounds: in Kant’s view, talion law—“an eye for an eye”—is the Categorical Imperative instituted politically). These are no mere inconsistencies; in both cases the monarch is the exception that proves the rule. Robespierre argued to the Convention that Louis XVI is “the only one who can legitimately receive” the death penalty, since his survival prevents the establishment of a state governed by natural laws (e.g. the law prohibiting the death penalty). For Kant, by contrast, the death penalty belongs to the proper repertoire of punishments meted out under a juridical state (Rechtsstaat), but there can be no juridical state without a (legally inviolable) sovereign to embody the legislative will of its people. In both cases the susceptibility or insusceptibility of the monarch to capital punishment is the particular exception that sustains the rule of law in general. As a consequence, any attempt to subject the monarch to the law from which he is exempt (whether protecting his life or demanding his death) necessarily destroys the life of the state as such. When Robespierre proclaims that “Louis must die in order that the nation may live,” he is thus following the same logic that leads Kant to argue that when a monarch is executed, “it is as though the state itself commits suicide.”

But the parallels between Kant and Robespierre fail to account for an important detail of what Kant says (and how he says it) about legislated regicide. Kant’s assertion that any attempt to rebel against the authority of the sovereign (and a fortiori any attempt upon the life of his person) must be considered criminal follows more or less logically from his understanding of the relationship between the rule of law and sovereignty. On Kant’s view, there can be no rule of law without the existence of a sovereign or supreme legislator; the sovereign may be “republican” (representative of the general legislative will of the people) or “despotic” (unrepresentative), but in no case can he institute a law that permits his people to rebel, since doing so would entail authorizing a counter-authority, which is logically contradictory. Hence, when Kant speaks of his horror at the “formal” execution of a monarch—that is, the sovereign’s legislated murder—he is responding to the thought of something that is not only necessarily illegal, but actually impossible. This is why he spills so much ink over the issue. Unless he can explain how the executions of factual monarchs like Charles I and Louis XVI were in fact possible and also clarify the true source of his horror, he’ll have to call one of his major premises about the nature of sovereignty and law into question.

The fact that Kant draws on theological terms to express his horror might seem like clear evidence of the frailty of his much-vaunted rationality before a phenomenon that he simply finds too revolutionary, but it actually points to the broader theoretical armature that enables him to resolve the theoretical problems that the monarch’s execution poses. It is not incidental that Kant takes recourse to the Christian figure of the unforgivable or eternal sin, which the Gospels define as blasphemy against the Holy Ghost, and which the Protestant tradition has often interpreted more narrowly as falsely imputing the works of Christ to Satan. For Kant’s explanation of the source of his horror relates to an infamous facet of his moral philosophy: his account of “diabolical” evil.

In his treatise Religion within the Bounds of Mere Reason (1793), Kant makes a number of extremely controversial claims about evil. His main claim is that human nature contains “radical evil,” by which Kant means that every human being necessarily possesses the possibility of freely acting immorally. This possibility need never actualize, since human beings are just as capable of doing good as they are of doing evil (if we weren't free to do either, then our actions couldn't be considered "moral" at all, this way or that, since we wouldn't be responsible for them). Nevertheless, for Kant, even the most virtuous human being, one who never committed an evil deed in his life, by sheer virtue of his necessary freedom to do evil, possesses a radically—that is, ineradicably—evil nature.

At the time of the treatise’s publication, this dismal stance provoked the disapproval of eminences as varied as Goethe (who found Kant’s doctrine disappointingly orthodox) and King Friedrich Wilhelm II (who immediately commanded Kant to cease and desist from distorting the Holy Writ). Later, in the 20th century (and specifically in the aftermath of the Second World War), Kant’s theory of evil started coming under fire—ironically enough—for its optimism. Critics now focused on Kant’s second claim about evil; namely, that although the possibility of doing evil is fundamental to human nature, it is simply impossible to do evil for its own sake.3

This claim might seem outlandish, but it is not necessarily uncommon in the history of philosophy; Hannah Arendt even went so far as to suggest that it is the unifying feature of the tradition of moral philosophy.4 If that’s true, then one might hypothesize that an analogous belief unifies the tradition of political philosophy—because it the belief that evil is never done for its own sake that enables Kant to condemn legislated regicide on philosophical grounds. In order to see how this works, we need to understand why Kant claims that evil is never for its own sake.

Now, Kant never actually speaks about doing evil “for its own sake.” Rather, he discusses the idea of a “diabolical being” who “repudiates the moral law … in [a] rebellious attitude (by revoking obedience to it)” and wills “evil qua evil.” Kant insists that no human being—not even the very worst—is capable of such diabolism. This follows from Kant’s account of human volition. The will is divided into two faculties: the “power of choice” [Willkür], which is the capacity to freely and spontaneously incorporate incentives into rules (or "maxims") for action, and the purely rational will [Wille], which supplies the power of choice with the particular incentive of "duty," or the feeling of respect for the moral law (the categorical imperative). (Kant elsewhere likens the power of choice to the executive power of human volition and the rational will to the legislative.) This account of volition forces Kant to reject two traditional candidates for the ground of moral evil. The first is “sensuous nature,” i.e. our natural drives, desires, and inclinations. Nature can’t be the ground of moral evil because it merely provides us with certain kinds of incentives; it never forces our will (if we choose to live as animals, it’s our fault—not nature’s). The second candidate is a “corruption of the morally legislative reason” (an “evil reason” or “absolutely evil will”). But this also can’t be the ground of our evil, because “resistance to the law would itself be thereby elevated to an incentive (for without an incentive the power of choice cannot be determined), and so the subject would be made a diabolical being.”

Kant never spells out why the human will can’t be diabolical, but we can reconstruct his reasoning in light of his conclusions about the ground of moral evil. As we saw, Kant believes that human beings are subject to two types of incentives, natural inclinations (in obedience with the “law of self-love”) and duty (in obedience to the moral law), and that the power of choice freely incorporates these incentives into its maxims for action. But being neither animals nor angels, our motivations are always mixed. Kant therefore concludes that “the difference, whether the human being is good or evil, must not lie in the difference between the incentives he incorporates into his maxim (not in the material of the maxim) but in the subordination (in the form of the maxim): which of the two he makes the condition of the other.” An evil human being is one who has chosen to follow the rule that he will only obey the moral law when it suits his natural inclinations, and a good human being is one who has resolved only to obey the law of self-love when it serves his moral duty. In more familiar terms: good people pursue happiness for the sake of the good; evil people do good for the sake of happiness.

Now we can see why Kant rules out the possibility of a diabolical human will. According to Kant’s concept of human volition, human beings can disobey the moral law, but they are incapable of escaping its jurisdiction. Just as the thief tacitly acknowledges the law of private property (if only to be able to invoke it when it suits his interests), so the evildoer invariably recognizes the legitimacy of the moral law—he’s just willing to make an exception for himself. But a diabolical will doesn’t simply disobey the moral law; it rebels against it as such. For a human will, this would have to involve a counterincentive (disrespect for the moral law). But this counterincentive could never fit, as it were, into a maxim that also contains the incentive of the moral law, since subordinating either one to the other would entail a logical contradiction. As Allan Wood puts it, “I cannot consistently make it my principle to ‘obey the law on the condition that I disobey it’ or to ‘disobey the law on the condition that I obey it.’ I cannot consistently incorporate both the incentive of moral reason and the incentive to do evil for evil’s sake into the same maxim.”

It’s hardly surprising that Kant doesn’t waste ink responding to potential empirical objections to his claim that evil is never done for its own sake. The oft-cited “counterexample” of sadism or Schadenfreude, which Kant does address in passing, is easily reducible to the effect of a subordination of the moral incentive; its ultimate end is self-love, not evil per se. Nevertheless, Kant admits that vices like Schadenfreude do resemble the sort of rebellion against the moral law that we know to be impossible in principle. Hence he classes Schadenfreude among the “diabolical vices” (along with “envy,” “ingratitude,” and a tantalizing “etc.”). As we would predict, Kant suggests that diabolical vices can’t actually be committed—they only exist ideally (“they are simply the idea of a maximum of evil that surpasses humanity”).

It is by again insisting upon the ideality—not reality—of diabolism that Kant finally resolves the problems raised by legislated regicide. After likening the object of his horror to the eternal sin, Kant undertakes to account for his affective response (“this phenomenon in the human mind”) in political, rather than moral, terms. What ensues is an analysis of crime that doubles his analysis of evil on nearly every essential point: crimes must be the result of freely chosen maxims in order to be imputable to a subject; to become a criminal, a subject must somehow disobey “the clear prohibition of his lawgiving reason,” and theoretically there are two ways this can happen:

Now the criminal can commit his misdeed either on a maxim he has taken as an objective rule (as holding universally) or only as an exception to the rule (exempting himself from it occasionally). In the latter case he only deviates from the law (though intentionally), he can at the same time detest his transgression and, without formally renouncing obedience to the law, only want to evade it. In the first case, however, he rejects the authority of the law itself, whose validity he still cannot deny before his own reason, and makes it his rule to act contrary to the law. His maxim is therefore opposed to the law not by way of default only (negative) but by rejecting it (contrarie) or, as we put it, his maxim is diametrically opposed to the law, as contradictory to it (hostile to it, so to speak).

In the terms of the Religion, the criminal who deviates from the law is evil, but the criminal who opposes to the law is diabolical. Or to invent analogous terms: a criminal merely actualize the radical criminality in human nature, but a rebel—someone who commits crime qua crime or for its own sake—cannot exist. Kant says exactly this in the next sentence, linking his analysis back to the concept of ideality that he introduced in his discussion of diabolical vices: “As far as we can see, it is impossible for a man to commit a crime of this kind, a formally evil (wholly pointless) crime, and yet it is not to be ignored in a system of morals (although it is only the Idea of the most extreme evil).”

Thus Kant can claim that the true object of his horror isn’t the execution of this or that monarch but rather the pure idea of a “formally evil” crime, which the formal execution of any sovereign by his people is bound to evoke without ever instantiating. The executioners are always in bad faith about their deed, which can never attain the status of “rightful procedure” with which the execution (really murder) purports to be meted out, but the form of their procedure calls up the shadow of its ideal. This is why Kant insists that his horror isn’t an “aesthetic feeling” (like sympathy for a particular person who suffers an injustice) but rather a “moral feeling”; in other words, Kant’s horror is nothing other than his respect for the moral law provoked negatively by the thought of ideal evil.

Kant would deny, of course, that there is any contradiction in his uniting horror with respect under the concept of moral feeling. In a footnote in the Religion, Kant describes the complex cascade of feelings provoked by the majesty of the moral law, which culminates in the feeling of the sublime:

The majesty of the law (like the law on Sinai) instills awe (not dread, which repels; and also not fascination, which invites familiarity); and this awe rouses the respect of the subject toward his master, except that in this case, since the master lies in us, it rouses a feeling of the sublimity of our own vocation that enraptures us more than any beauty.

In the Third Critique, Kant famously describes the feeling of the sublime as a “negative pleasure” caused by the drawn out failure of the imagination coupled with the triumph of reason. There, as here, the true object of the feeling of the sublime is the transcendental sovereignty of autonomous reason. Hence if horror and respect are reversible terms, it is because they determine a symmetrical geometric form. The axis of the Kantian Revolution = law unto itself. Moses Mendelssohn may have overestimated the violence of Kant’s thought—or perhaps he observed the tablets slipping from his fingers.


1Strikingly, Kant ruled out the possibility of a similar revolution in biology, asserting in the Third Critique that there “will never be a Newton for a blade of grass.” According to one recent commentator, however, this prediction was disproven by the discovery of the law of natural selection (“There was a Newton of the blade of grass and his name was Charles Darwin”).

2Hostis humani generis obviously prefigures the modern legal category of “crime against humanity,” although its relevance in particular cases has been contested (Hannah Arendt, for instance, strenuously objected to its precedential use in the Eichmann ruling). It has also played a double role in the recent legal history of torture. In a landmark 1980 case (Filártiga v. Peña-Irala) a U.S. court cited the term in justification of its decision that the United States holds jurisdiction over acts of torture committed by non-US citizens in non-US territory (“for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind”), and that usage was later established as part of customary international law when it appeared in a ruling by International Criminal Tribunal for the Former Yugoslavia (Prosecutor v. Furundžija). In the context of the War on Terror, however, the concept helped provide the ground for legal status conferred upon suspected terrorists (“unlawful combatants”), which enabled the US to implement extradition practices, detainment conditions, and interrogation techniques that otherwise would have contravened domestic and international law—to say nothing of our consciences: Last year The Wallstreet Journal published an opinion piece by UC Berkeley Law professor John Yoo (who as former Deputy Assistant Attorney General under the Bush administration authored the notorious “Torture Memos” recommending the use of “enhanced interrogation techniques” at CIA and Defense Department detention sites), in which Yoo criticized Obama for blunting the efficacy of US counterterrorism efforts by over-relying on a no-capture policy (exemplified by the drone program). After scoffing at the rumor that the president consults St. Augustine and St. Aquinas for guidance in selecting drone-strike targets, Yoo deftly reunites the two genealogies of hostis humani generis in order to argue that Obama has neither moral nor legal reasons to hesitate about capturing and interrogating terrorists: “just-war theory should broaden, rather than limit, the use of force against terrorists. The work of the Catholic theologians drew upon traditions stretching back to the ancient world that would have considered terrorists to be hostis humani generis, the enemy of all mankind, who merited virtually no protections under the laws of war.”

3To my knowledge, the first to criticize Kant for his position on diabolical evil was American philosopher John Silber (later a highly controversial president of Boston University, and later still a failed-gubernatorial candidate for the state of Massachusetts), whose now-canonical essay on Kant’s ethics prefaced the 1960 reprint of the English translation of the Religion. Silber argued that Kant’s denial of diabolical evil evinces a blindness to a basic fact of human experience, and that the personality of an individual like Hitler provides concrete proof of the fact that—Kant’s insistence to the contrary—evil can indeed be rational. Silber’s claim seemed to receive independent verification in 1961 when Adolf Eichmann recited the categorical imperative (with surprising accuracy) before the judges in Jerusalem. Hannah Arendt was quick to dismiss the relevance of Kantian philosophy to the Nazi mind (“[in Eichmann’s version of Kant] all that is left is the demand that a man do more than obey the law, that he go beyond the mere call of obedience and identify his own will with the principle behind the law—the source from which the law sprang. In Kant’s philosophy, that source was practical reason; in Eichmann’s household use of him, it was the will of the Führer”), but she basically agreed with Silber that Kant’s “radical evil” fails to account for the evil of totalitarianism, which requires a rethinking of evil altogether. When she elaborates her new understanding of evil in her 1965-66 lecture series “Some Questions of Moral Philosophy,” her writing bears obvious traces of a deep (and critical) engagement with Silber’s arguments about Kant, an engagement which likely contributed to her decision to substitute her infelicitous formula “the banality of evil” with the explicitly anti-Kantian phrase “rootless evil.”

4“If tradition of moral philosophy (as distinguished from the tradition of religious thought) is agreed on one point from Socrates to Kant and . . . to the present, then that is that it is impossible for man to do wicked things deliberately, to want evil for evil’s sake.” (“Some Questions of Moral Philosophy”)