The UN convention against torture (CAT)

The CAT was established in 1984. The UK was an early signatory (as were many other European nations) and the US has subsequently ratified it (albeit with several reservations expressed by the Senate). The Convention states in Article 2 (1) that ‘each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. And 2 (2) ‘no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture. Furthermore the Article concludes 2 (3), ‘an order from a superior officer or a public authority may not be invoked as a justification of torture.’ Article 3 (1) of the same Convention provides a direct reference to current controversies concerning rendition in stating: ‘No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’

The Convention is now part of an emerging body of international law dealing with such issues. As Antonio Cassese puts it, ‘torture is not only prohibited as an international crime when it is part of a widespread systematic practice thus amounting to a crime against humanity. Torture is also proscribed when it is perpetrated as a single act, outside any large-scale practice.’Footnote ⁷ Torture is legally banned throughout the world and offenders can be brought to justice anywhere in the world for its practice. ‘By now a general rule has evolved in the international community: (a) prohibiting individuals from perpetrating torture, regardless of whether it is committed on a large scale, and (b) authorizing all states to prosecute and punish the alleged authors of such acts, regardless of where the acts were perpetrated, and whatever the nationality of the perpetrator or the victim’.Footnote ⁸

Torture none the less continues to occur despite its standing as an international crime against humanity. Political leaders in the West know it is illegal as they must also know it is morally questionable. Admittedly, after the atrocity of 9/11 and the controversial ‘War against Terror’ to which it has given rise many serious voices have raised the issue of whether or not under certain extreme circumstances torture might be a politically necessary expedient.Footnote ⁹ However as things now stand, in Kantian terms, the theory of right and the legal statutes are at one in denoting it as culpable and punishable.Footnote ¹⁰ From a Kantian perspective one way in which the obligation not to torture can be derived is from our duties of virtue toward other human beings. We are under an obligation to respect them as fellow human beings: (6: 462; 579). This respect we owe to others cannot be removed even where we believe individuals have been guilty of the most terrible actions. We should reject cruel and ‘disgraceful punishments’ because they ‘dishonour humanity’: (6: 463; 580).Footnote ¹¹ Political leaders in carrying out law and right (as their offices require) should therefore not be in two minds about the appropriateness of refraining from the use of torture. Here a wedge has appeared between the legal and the political. Some have argued that, although legally wrong, torture might be politically permissible.Footnote ¹² From a Kantian perspective this is pseudo-politics of an alarming kind.

We can discern the kind of grip this false politics has gained by considering the reservations made by the US Senate to the application of the Convention against Torture. The Senate, in its first reservation, makes clear that it regards the US' Constitution and not the Convention as setting the benchmark for what constitutes torture. Subsequently the Senate records that it only regards direct involvement in the activity of torture by US' agents, soldiers and combatants as culpable (II: b), where torture occurs through the connivance of a third party this is outside its jurisdiction. Here, as with the other reservations, little attempt is made to disguise the perspective from which the alterations are proposed – one that is heavily dominated by US national interests. Prudence comes to the fore in the Senate's approach, self-evidently at the expense of morality and arguably to the detriment of legality. Concerns for the undiminished exercise of US' power – both domestically and internationally – appear to override what a theory of right (and what a consistent approach to international law) might require. This point is made more openly by the Wall Street Journal when defending the practice of ‘water boarding’ (in many people's eyes torture, illegal under the United Nations Convention but arguably permissible under the US constitution) in the campaign against terror. In a leading article on 7 January 2006 the Journal argued: ‘the most aggressive interrogation technique authorized against such men is “waterboarding”, which induces a feeling of suffocation. That's rough treatment, but the technique has also been used on US servicemen to train them to resist interrogations, and we suspect many Europeans would accept it if they believed it might avert another Madrid.’

In both these examples of the treatment of the Convention against Torture and rendition there is evidence of politics being instrumentalised or, in other words, of its being seen simply as a means of achieving technical ends. The technical end might simply be competitively doing better than your rivals, or gaining a material advantage (like securing a favourable supply of a much needed commodity or service) or merely creating the appearance of astuteness and cleverness. What seems to be the case is that the pursuit of such positions of advantage is regarded as entirely legitimate and part of our expectation of what politicians do. Politics is taken as a sport where points are awarded according to how effective leaders are at achieving their objectives and getting the better of rivals. We look for success in political leaders and judge them according to their skill in exercising their power. Prudence, in the sense of sound strategic ability, looms large in our assessment of political leaders. As one philosophical advocate of this approach puts it, ‘what are the limits to be set upon grossly immoral and cruel practices which sometimes also effectively protect and promote great public causes?’Footnote ¹³ It is assumed by many that nothing of note can be achieved in politics without stepping beyond the bounds of what morality at the individual level requires.

Max Weber captures this understanding of politics in his definition of the concept in his essay on the ‘Profession and Vocation of Politics’. In his terms politics ‘would mean striving for a share of power or for influence on the distribution of power, whether it be between states or between the groups of people contained within a single state.’ Weber claims furthermore that ‘this corresponds to ordinary usage. If one says that a question is a “political” question, or that a minister or official is a “political” official, or that a decision is determined “politically”, what is meant in each case is that interests in the distribution, preservation or transfer of power play a decisive role in answering that question, determining this decision or defining the sphere of activity of the official in question. Anyone engaged in politics is striving for power, either power as a means of attaining other goals (which may be ideal or selfish), or power “for its own sake”, which is to say, in order to enjoy the feeling of prestige given by power.’Footnote ¹⁴ Weber words imply that considerations of morality and legality can be legitimately downplayed in engaging in the technical game of politics. This is not of course the only spirit in which one can pursue a career in politics, but the positivistic nature of Weber's analysis (observing how in fact politicians often act) lends itself to an acknowledgement of the instrumental quality of political action. We turn now to what Kant has to say about this order of priorities.

Kant's critique of pseudo-politics

If we are to decide what constitutes good or bad politics, and so draw conclusions about issues such as rendition and the use of torture, we have first to determine what politics is. This Kant does in a comprehensive but precise sense – a sense I want to endorse here – in his practical philosophy. Politics for Kant is the ‘execution’ or the ‘carrying out’ of the theory of right or law (Recht). Thus the doctrine of right (Rechtslehre) law, as spelled out in the first part of the Metaphysics of Morals (1797), provides the basis for the practice of politics. The doctrine of right deals with all aspects of law and can be seen separately from ethics which has to do with our motivation in acting (and so focuses on virtue). However it cannot be seen separately from morality in general which includes within it not only the rules of virtue but also positive or juridical law. So Kant's account of international relations – leading to perpetual peace – is an integral part of his theory of right. It is from this doctrine of right that Kant's political philosophy and its implications for political action have to be drawn.Footnote ¹⁵ Although an autonomous sphere law represents a key yardstick by which politics should be measured, one which distinguishes Kant's international theory from that of realists and one I highlight here.

Politics and morality

From a Kantian perspective politics and morality are to be seen as partners within a continuum where neither the one nor the other excludes its partner. Both morality and politics belong to practical philosophy (which deals with the system of morals in general) whose function and limits are outlined in the Critique of Pure Reason and (more fully) in the Critique of Practical Reason.Footnote ¹⁶ Kant deals systematically as we see with the role of politics in Perpetual Peace (1795). He had taken up the topic earlier in the article ‘On the Common Saying this may be true in theory but does not apply in practice’ (1793) in criticising Hobbes's political theory, and also makes some significant comments in the doctrine of right and other shorter writings of such as the ‘Idea for a Cosmopolitan History’ and ‘On a supposed right to lie’. Kant shows himself to be fully aware, in Weber's terms, that ‘anyone wishing to practise politics of any kind, and especially anyone who wishes to make a profession of politics, has to be conscious of these ethical paradoxes and of his responsibility for what may become of himself under pressure from them.’ He would indeed concur with Weber that ‘he is becoming involved’ with ‘the diabolical powers that lurk in all violence’Footnote ¹⁷ but Kant nevertheless argues that politics has always to subordinate itself to right. Political action can, indeed, be thought through spontaneously independently of law and morality but the resulting action must nevertheless always be in accordance with both.

We can see from as early on as The Critique of Pure Reason (1781) Kant entertained ambitious thoughts about the ambit and possibilities of politics. His remarks there in the Transcendental Logic demonstrate an enthusiasm about political improvement which seeks to realise the human being's highest moral ideals. He draws a sharp line between the conduct of the human species as we have experienced it, and how it might be given the most favourable political arrangements. In his view ‘nothing is more harmful or less worthy of a philosopher than the vulgar appeal to allegedly contrary experience’Footnote ¹⁸ to prove the apparent worthlessness of plans for political reform. In Kant's view such evidence can never be wholly conclusive and so should not be allowed to divert us from a better politics. This better politics would be one where policy, justice and law are in accord. For ‘a constitution providing for the greatest human freedom according to laws that permit the freedom of each to exist together with that of others (not one providing the greatest happiness, since that would follow of itself) is at least a necessary idea, which one must make the ground not merely of the primary plan of a state's constitution but of all the laws too.’Footnote ¹⁹ Where we are able to enjoy reciprocal freedom under law is the condition of right. Here we see that politics has to be grounded in principle and is not to be derived from the utilitarian ideal of the greatest happiness of all concerned. Consequences are of concern to Kant of course – since he believes that everyone's happiness will be served by creating a republican constitution – but they are not the principal guide. The principal guide in determining political objectives has to be the compatibility of those objectives with the moral law. The idea of the universability of the maxim underlying a policy has to be affirmed. Where we find that a maxim cannot convincingly be generalised, for example, the maxim that ‘when I require information urgently and I may save a lot of human lives, then it is right to torture people if it might elicit such information’ then the policy that flows from it cannot be carried out.

Politics, morality and cosmopolitanism

This does not mean that politics and morality are identical. This is often taken to be the case with critics of the Kantian perspective: they regard Kant as an idealist who overlooks the specific requirements of political action, looking for virtue in all the politician's undertakings. The pursuit of politics has its own distinct skills. Politics concerns itself, as Kant puts it in the essay on ‘Theory and Practice’ ‘with the well-being of states, and an individual who is active in its pursuit is a statesman’:Footnote ²⁰ (8: 277; 280–1). Morality in contrast concerns itself with the well-being of the private individual ‘who is still a man of affairs’; and the cosmopolitan perspective deals with the well-being of the human race as a whole and is the concern of the individual as ‘a citizen of the world generally’: (8: 277; 281). Politics might be seen as focusing primarily on state law (or the ‘right of a state’) whereas the further cosmopolitan perspective might be seen as focusing on the law of nations (or the right of states). The political and cosmopolitan perspectives are not mutually exclusive since law itself is a unity, connecting private law at its most local level with state and international law. Thus, no policy should be countenanced within the international sphere which could not be accepted as right through the free agreement of individuals within the personal and national spheres and vice-versa.Footnote ²¹ The statesman has by definition to function within the framework of law at both the national and international level.

This should be contrasted with the quibbling and prevarication that we occasionally see in public attitudes to the issues of torture and rendition after the attack on the twin towers on 9/11. The tone of the discussion of torture in relation to terror suspects in North America and Europe suggests that it may be all right to ‘roughen up’ terror suspects to elicit information from them. Since terrorists themselves have decided to abandon the standards of civilised behaviour there is a tendency to accept that those who might be suspected of planning or being engaged in such action should not be afforded the same rights as normal citizens.Footnote ²² Whereas very few would consider taking such a hostile approach to their neighbours and friends, and such procedures with ordinary criminals or crime suspects are illegal, when it comes to potential terrorism normal rules are set to one side. Kant's perspective calls for consistency in the implementation of law and respect for right at all levels – both within and outside the borders of the state. We should not contemplate lowering our moral standards when dealing with foreigners, not even those who have been declared our enemies by our country.

In Kant's view there can be no conflict between morality and politics as the carrying out of the theory of right: (8: 370; 338). There is no reason why the statesman then should act contrary to ordinary morality. False or pseudo-politics arises where politics is conducted in conflict with the laws of morality. The political leader is rightly subject to the same sense of duty as everyone else. Elevation to a political role does not raise the individual above the requirements of the categorical imperative. So Kant sees the arguments of his pure moral theory, of the Groundwork and the Critique of Practical Reason as extending to the political sphere. He does not accept that politics should, in Weber's style, solely be governed by a general doctrine of prudence: (8: 370; 338) or a ‘reason of state’ that seeks to provide grounds for political action based on the judgment of the likely effectiveness and success of policies. He would not distinguish between an ethics of conviction (where absolute moral standards can be applied without regard to consequences) and an ethics of responsibility (where modified ethical standards apply that pay heed to consequences).Footnote ²³ Weber believes the politician has to follow the harder second path, and avoid the temptations of the morally more pleasing first path, by measuring policies primarily from the standpoint of their ‘foreseeable’ consequences. This leads to a view of policy making as a technique that focuses on achieving favourable outcomes. A Kantian would recommend that difficult policy issues should not simply be ‘handled’ to get the best short term outcomes for those who rule, but rather should be dealt with in such a way that moral considerations are properly taken into account. Kant is fully aware that the pursuit of advantage cannot be ruled out in political life (as in other spheres) but he sees it as a mistaken view of politics to make the seeking of advantage the determining aim of one's actions. Although his main argument against political expediency of this kind – which puts personal or group advantage above all other considerations – is that it is morally incoherent and so indefensible, he also argues that sheer expediency ultimately undermines itself. Once the public realises a political leader is attempting to handle questions about policy solely for his or her personal or group gain, then it ceases to expect clarity and sincerity in statements and actions. A pure ethics of responsibility that focuses on managing anticipated outcomes arguably ends up taking leaders in irresponsible directions. This seems to be acknowledged by Weber himself when he claims (without citing any convincing evidence – for in the nature of the case there can be none) ‘no ethics in the world can get round the fact that the achievement of “good” ends is in many cases tied to the necessity of employing morally suspect or at least morally dangerous means, and that one must reckon with the possibility or even likelihood of evil side-effects. Nor can any ethic in the world determine when and to what extent the ethically good end “sanctifies” the ethically dangerous means and side-effects.’Footnote ²⁴ Because the anticipated outcomes of policies are so uncertain, it seems that it is vain for us to hope that political policy can be connected in any consistent way with the ethically good. Thus, at its extreme, Weber's approach to the vocation of politics leads to a deep pessimism as to what politicians can achieve. The politician who is good at handling issues of presentation and timing is preferred to the politician adhering to morality and right. In contrast the Kantian view is that the duty of the politician is always to abide by the law and to create and foster those conditions where law is carried out and observed.

Kant would concede the point made by ‘realists’ such as Carl Schmitt that the standards that apply to politics are not identical with those that apply to the morality of private life. To accept this point is not at all to give way to cynicism. The standards that apply to politics are standards of right, not simply the standards of ethics. Standards of right are indeed different from standards of ethics. Failure to abide by right leads to punishment whereas an infraction of ethics is subject only to censure. From the standpoint of politics that accords with right we are not, for example, concerned with whether or not subjects and rulers are observing the laws merely because they fear the consequences of breaking them or because they are motivated to do the right thing. So Kant is looking to politics neither directly to improve the inner moral disposition of individuals, nor as an exceptional sphere where individuals can demonstrate their true moral worth. Both objectives are exclusively a matter for individuals themselves and so beyond the scope of political policies. The goal of virtue is the individual's perfection; the goal of politics is the creation of a worldwide civil society. As Kant sees it, being a good political leader does not necessarily make you a good all round person (although it may not be incompatible with it). In Kant's terms the sound politician has not to act contrary to the categorical imperative, but does not necessarily have to embrace this as his end.

Here we can introduce the notion of integrity to try to explain the Kantian view more clearly. Integrity is not a concept that arises directly in Kant's own writings but it can be plausibly argued that it is implied in his treatment of morals and politics and their connection. Integrity implies a unity of personality that gives an individual a specific character. A person who possesses integrity is at one with themselves. The ends of such persons harmonise with one another and the means they employ to attain these ends are not in conflict with each other or with the goal of maintaining an ideal of personality. Public integrity is of vital importance in a representative political system. In a contemporary democracy a political leader will come to power with the underpinning and support of the law. Electoral systems are, in other words, embedded in a legal structure which gives them legitimacy and makes them effective. Political leaders aspire to success in the context of this well embedded legal structure. The identity of the political leader is stamped with this framework of legality. A political leader's personality is partly shaped by this democratic framework. This does not represent a problem for a political leader with integrity who seeks to implement policies that are within the bounds of right. But the false politician operates within a different code. At one and the same time such a politician wants both the protection of the law, yet at the same time reserves the right to go beyond it where this best serves her interests. Here there's an obvious inner conflict of purpose. The false politician sees the necessity for upholding the law and will want others to obey it in order that she can exercise power to the full. She adopts legality as a principle of conduct. But adding the caveat that the legal structure can be overridden if vital interests dictate subverts the principle. This leads both to inner discord and to outer conflict. Those who have to deal with such a political leader will be baffled and dismayed with the double-standards. This puzzlement and dismay will not only be experienced by the politician's opponents within the representative political system but also by her supporters and voters. The latter may be more forgiving than the former but persisting with the double-standards can in the long term lead to the alienation of the public and the leaders of other states.

Our everyday expectation as observers of world events that politicians may dissemble and mislead is in conflict with our greater need and, indeed, moral requirement to be ruled by leaders who retain their integrity. A leader who is a patriotic realist that puts the self-interest of the nation above all other considerations of morality will undermine the true patriots in the nation who hold that self-interest has to be pursued in harmony with morality. It would be a mistake for citizens to allow their pessimism about the human race to govern their requirements in political leaders. Just as good political leaders will attend to the better side of human nature (without of course blinding themselves to the worse side) a sound citizen will seek to cultivate the better side of the political leader. Political leaders that allow themselves the latitude to refuse to abide by law and the conventions imposed by the development of a world human rights regime create acute problems of integrity for themselves. A lack of integrity has consequences both for one's inner virtue and for ethical relations with others. A person who adopts and discards principles at will is likely to suffer problems of identity. Such a person will be unsure of her long term project as an individual: not knowing what she stands for in terms of standards of conduct and the kind of relationships she wishes to maintain. Persons without integrity are without character in the positive sense of that term. We know what they are like but there are no consistent traits we can attribute to them – other than that they are inconsistent. For integrity implies consistency in one's outlook and behaviour over time: that principles applied on one occasion are respected on all other occasions.Footnote ²⁵

Rightful politics

Kant recommends that the role of politics is to harness the natural inclinations and behaviour of the human species to accord with the demands of morality. This leads to a view of politics ‘as the art of making use of the ‘mechanism’ of nature ‘for governing human beings’ in a way that is compatible with right.Footnote ²⁶ (8: 372). Thus the wise political leader does not simply follow fortune and adapt morality to suit his purposes; politics is empty unless it is regarded as government in harmony with the concept of right.Footnote ²⁷ Kant distinguishes therefore between statesmen who are moral politicians and political moralists who are individuals who engage in politics paying only lip-service to morality.Footnote ²⁸ This should not be taken to imply that right is pursued at the expense of material interest since right and material interest can often legitimately coincide. Rather it implies that politicians should only contemplate pursuing self-interest that is compatible with right. A Kantian should not view security in a confined nationalist sense. As his world federalist outlook implies, genuine security can only be gained in harmony with other nations. We should see our security not in isolation from other peoples but as mutually related to the well-being of other peoples.

In some respects the call for a moral politics would seem to play into the hands of those whose goal is anything but the Kantian one of a federative union of states. The authors of the 2003 invasion of Iraq, for example, were convinced of their moral rightness, just as are the leaders who have condoned or turned a blind eye to state-sponsored torture and extraordinary rendition. From a Kantian perspective the morality that matters in politics cannot simply be one where the intentions are good, the existing legal structure and provisions of domestic and international law have also to be respected. On these grounds both the 2003 invasion of Iraq and the surreptitious torture regime of post 9/11 are ruled out.

Thus Kant's framework guards against the conviction politicians just as much as against the Weberian politician who overzealously follows an ‘ethic of responsibility’ for whom outcomes are of paramount importance. The commitment shown by the ‘conviction politician’ to advance the well-being of others is an important source of policy but this does not itself make the policy a correct one. Ethically motivated policies both have to be tested against the internal laws of virtue and the external laws of justice. In judging the morality of politicians we not only have to evaluate the motivations for an action but also the conformity of the action to national and international law. A politician who focuses only on getting the motivation right is more akin to a political moralist than a moral politician by overindulging the pursuit of certain aspects of virtue at the expense of right. Whereas the conviction politician sacrifices right to a one-sided virtue, the Weberian politician who relies on an ‘ethic of responsibility’ sacrifices right to consequences or political success. Kant seeks a golden mean where both virtue and political success have to be pursued within the context of right. This gives us one further ground why the realist sceptic might be drawn to Kant's position: Kant finds a role both for conviction and the weighing of consequences in his approach.

The duty to obey domestic and international law is for Kant a perfect duty whereas the duty to help others is an imperfect one whose execution depends on our judgment and will. With the ethical duty the conviction politician wants to pursue as a priority there ‘is latitude for free choice following (complying with) the law, that is, that the law cannot specify precisely in what way we are to act’: (6: 390; 521). In contrast the politician has no latitude in deciding whether or not an existing juridical law should be obeyed. It is a politician's peremptory duty to carry out domestic and international law and the demands of the wide duties of virtue have to be carried out in a judicious and measured way within that context.

Arguably Kant does introduce with his notion of permissive laws possible latitude for the political leader in the implementation of right in Perpetual Peace which might be taken to provide a loophole for those leaders who wish to turn a blind eye to illegal practices. Kant divides the Preliminary Articles of the proposed treaty for peace into those that are of the ‘strict kind’ ‘holding without regard for different circumstances’ that insist on the political leader putting a stop to abuses ‘at once’ and permissive ones. The permissive articles 2, 3, 4 are contrasted with the prohibitive ones 1, 5 and 6. Articles 2, 3 and 4 are ‘laws that, taking into consideration the circumstances in which they are to be applied, subjectively widen his authorization and contain permissions, not to make exceptions to the rule of right, but to postpone putting those laws into effect’: (8: 347; 320). Kant gives as an example of such a permissive law Preliminary Article 2 which stipulates that ‘no independently existing state (whether large or small) shall be acquired by another state through inheritance, exchange, purchase or donation’: (8: 344; 318). However the latitude granted the leader does not authorise any new acquisitions of such a kind but simply postpones the rectification of past wrongs until such a time that a state can be restored to its freedom in a fully effective way without undermining its current stability. Here the peremptory implementation of right is postponed only the better to realise the right. Thus the idea of permissive law would hardly authorise the persistence of torture on the grounds that it might hasten its disappearance, and the supposed grounds for the invasion of Iraq are dismissed easily by the example Kant gives. No permission can be granted to invade an independently existing state even if it is undertaken to give people their freedom. Kant advances the idea of a permissive law not to encourage the circumvention or suspension of right but rather to ease its implementation. The ‘infernal arts’ hitherto connected with politics are dealt with under the prohibitive laws (Preliminary Article 6) of Perpetual Peace and have to cease immediately.

The concept of right must indispensably be joined with the concept of politics and this combination has to be seen as ‘the limiting condition of politics’: (8: 372; 340). Thus the true politician feels under an obligation to modify and improve constitutions which are not as yet in accord with right. As ultimately the only kind of constitution that accords with right is a republican one a statesman always has before himself the ideal in both domestic and foreign policy of a people that legislates for itself (through its representatives) and is governed by representative(s) that are not part of the legislature. In the US we have the paradox of a people that are governed in a republican manner, yet occasionally have leaders that overlook the need to pursue foreign policy in a way guided by republican principles. The political leader, who tries to separate politics from right (and so morality) in this way, acts contrary to the art of politics itself. This is arguably a sure sign of the emergence of ‘pseudo-politics’ where politics is presented as a sphere distinct from morality and law, where extra-legal tactics can be deployed against the subjects of other states.

So Kant warns rigorously against political leaders giving precedence to prudence, expediency and momentary advantage in determining policy. Supreme emergency cannot be used as a justification for lapsing from nationally and internationally agreed standards of justice. Politics does not entail taking the existing state of affairs in the world as necessarily the correct one: the laws of a land and its policies should be measured according to the principles of right that have to be determined independently by the theory of right. Going into politics simply as a career in manipulating people for ends alien to them and for the pursuit of power for its own sake are deplored by Kant. Politics requires critical reflection on the circumstances of a state and human kind: (8: 374; 341). Political leaders should see people from the higher anthropological standpoint of what they might become. There is a necessary theoretical dimension to politics, therefore, since it is only through philosophical reasoning that the framework in which politics should operate can be properly known. Philosophical reflection has to be institutionalised into the framework of a civil state.Footnote ²⁹

Political leaders are aware, Kant thinks, that a true politics cannot be based on the mere instructions of prudence because they always seek to clothe their decisions in the garb of morality even where they know that the world thinks differently of their actions. With terrorism it is tempting to put the well-being of the potential victims before the law to gain much needed information from suspects. As Siddiq the foreign policy official puts it, in the leaked letter: ‘we should try to bring out the other side of the balance, in terms of the huge challenge which the threat of terrorism poses to all countries, and the need to balance the rights of suspected terrorists against those of potential victims’. This represents a false calculation. There can be no differentiation amongst classes of individuals in the application of rights: the UN Convention against Torture recognises, as does the US constitution, the freedom and equality of each individual human being so that implicitly each individual is attributed with dignity and worth regardless of their past behaviour. Thus the convention is not solely of instrumental value. Compliance is required in a peremptory way. The Convention against Torture was aimed not at furthering the interests of any one state in particular but rather at defending the interests of every individual human being. The Convention recognises that there are some values that transcend the values of an individual nation. In Kant's terms it has to do with cosmopolitan right. To seek to circumvent it is to deny our common humanity. As the Convention (Article 2: 2/3) itself states, no circumstances whatsoever can be invoked, be they those of emergency, external threat, internal instability or superior authority, to justify torture. Here Kant distinguishes himself from both Machiavelli and Hobbes who claim that politics is autonomous in relation (or even superior) to morality. Kant regards this as destroying true politics. Kant thoroughly dislikes duplicitous leaders that pay lip service to morality whilst in fact maintaining that all law emanates from cunning or force. They put the cart before the horse in their actions. Politics has to be based on morality and not morality on politics. The principles of public right have to be drawn from morality so that there is in his view a politics (8: 378; 345) that all political leaders should adopt. This is a politics that abstracts from any particular policy objective or goal and considers the overall conditions under which policy making and its implementation should be pursued. This politics can be applied (because of its abstractness!) in all kinds of circumstances because it deals with human individuals as rational natural beings. Although politics involves an infinite number of possible actions there are also universal standards of right that must govern those actions. Political action has to be subordinate to right.

Objectively then Kant argues there is no conflict between morals and politics (8: 379; 346), although he grants that subjectively there always will be. As natural beings, humans are disposed to put their own interests first. We know what our duties are but we are drawn inevitably towards wrong. The propensity for radical evil to be found in all human individuals, so evident in the actions of terrorists, is also something against which political leaders should guard in themselves. A moral politics has to be based on a positive choice to avoid the natural incentives (which lead to heteronomy) and to follow the incentives of reason (which alone accord with our autonomy). Politics requires the skill of knowing how to avoid the bad effects of natural incentives upon our choices. Kant sees there is a contrast between ‘empirical politics’ and ‘true politics’: (8: 380; 346). True politics is governed by the belief that the ‘pure principles of politics have objective reality’ whereas empirical politics holds that these principles have simply a subjective worth. ‘The rights of the human being must be held sacred, however great a sacrifice this may cost the ruling power.’Footnote ³⁰ The cost of possibly losing out on the acquisition of some valuable information through the use of torture should always be borne even if such torture has sometimes proved to be effective. Torture is not wrong because it is ineffective (even if this often proves to be the case); it is wrong because it debases the humanity present in each person (both that of the person tortured and the torturers themselves). True politics is necessarily normative: it fully takes into account the facts, but remains guided by the principles of right.

Kant acknowledges this is bound to be difficult. The art of politics is a hard skill to master, depending as it does on experience and the trained responses of its practitioners. Judgement, self-discipline and a capacity to learn quickly from experience are required. Not everyone possesses these qualities in sufficient abundance to become a good leader. Kant's moral politician will undoubtedly subscribe to what Max Weber calls the ‘ethic of responsibility’. Quite rightly he will not ‘presuppose goodness and perfection in human beings.’ Of course Kantian politicians will seek the improvement of the human race but they will also have the ‘trained ability’ Weber speaks of ‘to look at the realities of life with an unsparing gaze, to bear these realities and to be a match for them inwardly.’Footnote ³¹ The overriding principle that politics must subordinate itself to morality is straightforward to grasp. ‘All politics must bend its knee before right, but in turn it can hope to reach, admittedly slowly, the level where it will shine unfailingly’.Footnote ³² So that Kant would not go the one further step with the realist Max Weber and accept that the ‘achievement of “good” ends in many cases is tied to the necessity of employing morally suspect or at least morally dangerous means’.Footnote ³³ For Kant if the means of achieving a good end are suspect then they should be abandoned. The politician should avoid the temptation of attempting to bring about a quick fix by ignoring right.

Kant thinks a halfway house where the political leader seeks to compromise between empirical politics and morality, putting morality first where it is deemed possible and giving precedence to empirical politics where that seems necessary is untenable (8: 380; 346). We have to look directly in the face ‘the deceitful and treacherous but yet subtly reasoning principle in ourselves which pretends that the weakness of human nature justifies any transgression’ and overcome its temptations (8: 379; 346). Condoleezza Rice is reported to have thought hard about how to counter the terrorist threat but only from the standpoint of what was in the best interests of the US. The politician's understandable desire to safeguard and help fellow citizens should not override the unconditional requirements of right. And to seek to shift the boundaries of morality and law to meet with unexpected or apparently new circumstances would compound this error. ‘With respect to moral laws, experience is (alas!) the mother of illusion, and it is most reprehensible to derive the laws concerning what I ought to do from what is done, or to want to limit it to that.’Footnote ³⁴

Folklore

Political leaders and their followers have developed folklore about their activity that runs counter to the purposes of a moral politics. They regard the theory of right as a set of abstract ideals that cannot always be implemented. Empirical politics of this kind can run counter to morality (8: 383; 348). The empirically minded politician might for instance be inclined to conclude that on occasions it is right to torture.Footnote ³⁵ But the maxims of an empirical politics that seeks to set to one side morality can show themselves to be self-defeating. For example political leaders that regard themselves as free to act only on the basis of selfish interests in relation to other states will discover that if this becomes widely known other states will unite against their own to frustrate those policies. Empirical politics of this kind ‘with all its cunning’ (8: 384; 349) creates greater uncertainties for its practitioners. Empirical politics has its own dialectic; there are instances of the antinomy ‘between politics and morality’ (3: 383; 349). What is required to prevent the antinomy arising is the embracing of greater integrity in public life.

Such integrity is to be achieved by considering what is compatible with the freedom of the human being as the sole rational animal inhabiting the earth. In the international sphere a politics that is compatible with morality presupposes that the human race must seek to create a federative union of states to implement law in their mutual relations. The politics of prudence must subordinate itself to this greater end otherwise it is only a banal or pseudo-politics (Afterpolitik) (8: 385; 350). This ‘spurious’ or pseudo-politics has its own ‘casuistry (that despite the best Jesuit traditions),’ for example, allowing for the making of pacts with other states at the same time as mentally reserving the right to free oneself of its obligations when purposes suit. Kant criticised intellectual representatives of such a politics in his timeFootnote ³⁶ (8: 385; 350). There is a two-faced (Zweizuengigkeit der Politik) type of politics in relation to morality that tries to make use of one branch of the philosophy for the sake of another. The politics of folklore too readily agrees with the conditional duties of philanthropy ‘in order to surrender the rights of human beings to their superiors’, (8: 386; 351) but is more circumspect in agreeing with the unconditional duties required by the doctrine of right. Just as in Kant's day folklore politics can too easily get involved in the gestures of benevolence (‘regime change’) whilst refusing to commit itself in the most important and necessary sphere of abiding by international law (by, for instance, respecting the role of the Security Council of the UN). Such non-transparent or ‘furtive’ politics (8: 385; 351) has to be countered by the widest possible public debate of policy objectives.

A Kantian politics is then the politics of change, challenging many accepted practices. Properly conducted states' leadership rejects the folklore that politics is above morality. It also challenges the view that antagonism amongst states must from time to time become violent. Policies have to be filtered through an open, representative system of politics before they can be adopted. And the postulates on which these policies are based should demonstrate integrity. Kant argues that there is an objectively fair structure (one that is not merely a matter of the subjects' choice) for political deliberation and action that has to be studied and learned. Much like nowadays economic policy in the advanced democracies is determined only after closely following the advice of academic experts in monetary policy committees, so Kant suggests the overall political direction of a country should be determined only after a similar process of consultation with those whose principal concern is with the objectivity of their enquiries in morality, law and politics. The aim would not be to by-pass democratic consultation with the public as a whole but to inform it. This may represent a principal lesson of the Iraq conflict. More weight should be given to expert analysis in deliberation.

Kant's argument that prudential politics should always be subject to the condition of right (8: 429; 614) does not resolve all political dilemmas. Indeed it simply presents a framework within which they can be deliberated upon. As Kant recognises judgement is required for the implementation of policy. Thus difficulties can always arise in any particular circumstance as to what the best policy to follow is: the choice of individuals to implement policies; the choice of circumstances in which to implement them; the assessment of the circumstances that pertain; and the impact of those policies are all subject to an unpredictable fortune. Conflict with Iraq may well have occurred whatever policy choices were made. Kant's strictures about a true politics concern a politics that deserves to succeed; they do not outline a politics that must necessarily succeed. Kant's politician may indeed fail. The consolation that such politicians may have is that they attempted to do the right thing. Here the views of politics of Kant and Weber meet. As Weber aptly puts it, ‘politics means slow, strong drilling through hard boards, with a combination of passion and a sense of judgement’.Footnote ³⁷ Albeit that Kant might add that the passion should always be led by reason.