Auteur: Joris van de Riet

I will be presenting a paper titled ‘Unjust Enemy or Enemy of All Humanity? Immanuel Kant’s Critique of Grotius and Carl Schmitt’s Rejoinder’ at the conference on Grotian Law and Modernity at the Dawn of a New Age (celebrating 400 years of Grotius’ De iure belli ac pacis) in The Hague, 19-20 June 2025. My presentation will be on Friday 20 June in the afternoon panel on Part II, ‘Modernity and the dawn of a new age: general theory of law and governance’.

Abstract
In a famous passage in his 1795 book Toward Perpetual Peace, Immanuel Kant declares Grotius, Pufendorf, and Vattel to be “only sorry comforters” whose works have “not the slightest lawful force and cannot even have such force” and which “are always duly cited in justification of an offensive war” yet never to oppose it (AA 8:355). They are, in modern terms, mere “apologists” for those in power who wish to wage an aggressive war. As the title of his work makes clear, Kant is staunchly opposed to war as an instrument of policy.

There is, however, one major exception to this proto-prohibition on the use of force: in §60 of his Doctrine of Right, Kant argues that even when aggressive war is prohibited states are still permitted to use force, and in fact unlimited force, against an “unjust enemy”: one “whose publicly expressed will reveals a maxim by which, if it were made a universal rule, any condition of peace among nations would be impossible” (AA 6:349). There is therefore a tension in Kant’s conception of war: war is outlawed, except if it is used against a state which it itself an outlaw.

Carl Schmitt, in the sixth chapter of The Concept of the Political, rejects this idea of “wars waged in the name of humanity”: it is merely “an especially useful ideological instrument of imperialist expansion” that serves to outlaw the enemy, thereby creating a risk of “total” war that is even more brutal. This “discriminating concept of war”, supported by the League of Nations, may leave an entire nation as a hostis generis humani.

In their much-discussed treatment of Grotius and Schmitt in The Internationalists (2017), Hathaway and Shapiro notably do not discuss Kant at any length, only mentioning him as a proto-“Internationalist” of sorts. This is a regrettable omission, both because Kant is one of the first prominent thinkers to suggest “outlawing” war but also because Schmitt’s critique of what he sees as liberal hypocrisy that prohibits war but at the same time reserves the right to wage (“total”) war against those considered enemies is directed precisely at Kant. Luban’s work on the concept of the “enemy of all humanity” similarly hardly mentions Kant’s idea of the unjust enemy.

Building on earlier work on Schmitt’s critique of Kant (e.g. Benhabib), this paper aims to connect the concept of the hostis humani generis as seen by Schmitt explicitly to Kant’s idea of the unjust enemy as one who wages aggressive war, thereby elucidating both Grotius’ reception by Enlightenment thinkers and the history of the modern-day criminalization of aggressive war.
 

I will be presenting a paper titled ‘Kant on self-determination in international law’ at the Winter School ‘Kantian Political Thought Today’ of the ECPR Standing Group on Kantian Political Thought in Colchester, UK.

Abstract
The right to self-determination is one of the cornerstones of modern international law. It provides that all peoples may “freely determine their political status and freely pursue their economic, social and cultural development” (Art. 1(1) ICCPR) and constitutes “one of the essential principles of international law” (ICJ, East Timor). Histories of the right to self-determination generally portray its development as starting with the American and French Revolutions and the doctrine of popular sovereignty, through its elevation by Lenin and Wilson at the end of World War I, to the process of decolonization after World War II.

A name notably absent in most histories of self-determination is that of Immanuel Kant. Although recent work on Kant’s legal philosophy (e.g. Ripstein’s Kant and the Law of War) hints at this idea of self-determination, it stops short of developing a more comprehensive account. This paper aims to correct that narrative. It does not claim that there is some yet-undiscovered lineage by which the development of the right to self-determination was directly influenced by Kant’s political thought, but argues that there is a nascent idea of self-determination to be found in Kant’s writings that resembles the modern conception of self-determination in international law.

Kant’s theory of the state repeatedly compares the state to a “moral person” that cannot simply be disposed of (ZeF, AA 8:344) and in whose constitution other states are not allowed to intervene by force as that would be “a violation of the right of a people dependent upon no other” (ZeF, AA 8:346). Both of these prohibitions are explicitly linked to the original contract which is at the basis of the Kantian state, and “apart from which no right over a people can be thought” (ZeF, AA 8:344). The original contract, the idea of which also requires the state to have a republican form of government, thus grounds Kant’s form of the idea of popular sovereignty that is closely linked to the development of the right to self-determination in international law.

The disenfranchisement of a population evidently violates this idea of the original contract and popular sovereignty. Kant therefore staunchly opposes any form of colonialism: he explicitly states that “a defeated State or its subjects do not lose their civil freedom through the conquest of their country, so that the State would be degraded to a colony and its subjects to bondage” (MS, AA 6:348). Rule over a people that has not given its – even hypothetical – consent to an original contract is directly contrary to the idea of the rightful state Kant proposes.

Kant’s idea of a “league of nations” also invokes this idea of self-determination. His remark in Perpetual peace that “what holds in accordance with natural right for human beings in a lawless condition, ‘they ought to leave this condition,’ cannot hold for States in accordance with the right of nations” (ZeF, AA 8:355) supports political self-determination for states in relation to their neighbours: no state can be forced into such a league.

Together with Filip Lubinski (EUI) I will be presenting a paper titled ‘Kant’s Theory of Law and Ordoliberal Competition Policy’ at the NOUS Network/Walter Eucken Institute Workshop on Immanuel Kant as an Inspiration for Ordoliberalism in Freiburg i.B., 5-7 December.

Our presentation will take place on Friday, 6 December, from 16:45-17:45.

Abstract
Thinking about competition and law regulating it is inherently a normative exercise. The legitimacy of competition law presupposes that even entities rationally acting in self-interest in search of the most efficient solutions can harm the socio-economic order. It leads to a normative distinction between allowed conduct and that recognized as anti-competitive. Concepts such as “abuse,” “competition on the merits,” and “exploitative abuse” are “words very much tied to fairness”; and “fairness” has gained relevance with the recent Digital Markets Act. Economic considerations play a role in interpreting and applying competition law, but they still rely on (often implied) normative justifications. Since its ordoliberal beginnings European competition policy placed the goal of establishing a common market above economic efficiency. The common market was not an end in itself but a means to pursue “a high level of employment and of social protection,” “the raising of the standard of living and quality of life,” and “economic and social cohesion and solidarity among Member States.”

Considerations on the relation between competition and the socio-economic order can also be found, at least implicitly, in the works of Immanuel Kant. The distinction between “deontological” and “effect-based” restrictions of competition recalls Kant’s duty-oriented (as opposed to consequentialist) ethics. Taking as our basis Kant’s ideas on private law, and in particular Ripstein’s conception of private law as regulating relations between individuals, we attempt to construct a Kantian concept of competition law. Although regular market competition is not an interference with another’s rights, the abuse of market power that diminishes others’ freedom may constitute such an interference. It is also noteworthy that some interferences are wrong per se, even if they do not cause any (measurable) harm. The creation of a state allows for distributive justice through legislation, enforcement of laws, and independent dispute settlement. Within a state, the idea of unfair competition inherent in Kant’s private law can be enforced by authorities and adjudicated before independent courts. This limited role of the state in private law influenced later ordoliberal thought on autonomy and private law.

Kant does not discuss the operation of markets at length, although he mentions the role of money (6:286-289, citing Adam Smith) and of taxation and welfare policies. His view of welfare is restrictive (only those members of society who cannot support themselves), but there is a role for (minor) redistribution in Kant’s economic policies. His views of history and international order also discuss the effects of trade: “the spirit of commerce, which cannot coexist with war” (8:368) leads to a more peaceful international order through the interconnecting effects of trade: an early version of the idea that a common market prevents war. Although Kant does not discuss anything resembling modern competition law, his thought on market relations between individuals and private law prepare a normative justification for state intervention in the competition process. Moreover, this model of competition regulation following Kantian considerations on the state’s role in welfare and the benefits of international trade may be an inspiration for ordoliberal competition policy.

I will be presenting a paper titled ‘Self-Determination in International Law: A Kantian Perspective’ at the 14th International Kant Congress in Bonn, Germany. My presentation will be part of the panel on Legal and Political Philosophy 7.1, taking place on Monday, 9 September, at 09:00 in room GSI S36.

Abstract:
The right to self-determination is “one of the essential principles of international law” and has played a major role in the transformation of the international order. That right has traditionally been traced back to the French Revolution, through Wilson and Lenin, but rarely explicitly been linked to Immanuel Kant. This paper argues that Kant’s philosophy provides a solid basis for the construction of a theory of self-determination in international law, and that the idea of self-determination underlies much of Kant’s thought on international right. It discusses four aspects of self-determination: Kant’s emphasis on sovereignty and non-intervention; the relevance of the “original contract” and republican government; his permissive theory of territorial rights; and the role of the “league of nations”.

You can read the full paper on SSRN.