Helga Varden
Introduction
Kant's example of
lying to the murderer at the door has been a cherished source of scorn for
thinkers with little sympathy for Kant's philosophy and a source of deep
puzzlement for those more favorably inclined. The problem is that Kant seems to
say that it is always wrong to lie—even to a murderer asking for the
whereabouts of his victim—and that if one does lie and despite one's good
intentions the lie leads to the murderer's capture of the victim, then the liar
is partially responsible for the killing of the victim. If this is correct,
then Kant's account seems not only to require us to respect the murderer more
than the victim, but also that somehow we can be responsible for the
consequences of another's wrongdoing.
After World War II our spontaneous, negative
reaction to this apparently absurd line of argument is made even starker by
replacing the murderer at the door with a Nazi officer looking for Jews hidden
in people's homes. Does Kant really mean to say that people hiding Jews in
their homes should have told the truth to the Nazis, and that if they did lie,
they became co-responsible for the heinous acts committed against those Jews
who, like Anne Frank, were caught anyway? Because this is clearly what Kant
argues, the critics continue, his discussion of lying to the murderer brings
out the true, dark side not only of Kant's universalistic moral theory but also
of Kant himself. We get the gloomy picture of a stubborn, old academic who
refuses to see the inhumane consequences of his theory, and instead grotesquely
defends the inhumane by turning it into an a priori, moral command.
In this paper, I argue that Kant's discussion of lying to the murderer
at the door has been seriously misinterpreted. My suggestion is that this is
primarily a result of the fact that theDoctrine
of Right with its
conception of rightful, external freedom has been given insufficient attention
in Kant interpretation. It is in the Doctrine of Right that Kant discusses rightful
interaction in the empirical world. Hence it is in this work we find many of
the arguments needed not only to understand his analysis of lying to the
murderer in “On a Supposed Right to Lie from Philanthropy,” but also to analyze
the added complexity the Nazi officer brings to the example. When we interpret
lying to the murderer in light of Kant's discussion in the Doctrine
of Right, we can make sense of why lying to the murderer, although
a wrong, is not to wrong the murderer, why we become responsible for the bad
consequences of the lie, and finally why lying is to
do wrong in general.
The account of rightful freedom provided in
the Doctrine of Right also
makes it possible to see why replacing the murderer with a Nazi officer adds
philosophical complexity rather than just one more reason to reject Kant's view.
The introduction of the Nazi officer requires us to consider the role of a
public authority in ensuring rightful relations in general and what happens to
the analysis of lying when rightful interactions as a matter of fact are no
longer possible. We will see that the only time doing
wrong in general by
lying is legally punishable is when we lie to or as a representative of the
public authority. The Nazis, however, did not represent a public authority on
Kant's view and consequently there is no duty to abstain from lying to Nazis.
Two further strengths of Kant's account, I propose in the final sections of the
paper, lie in its ability to critique how European legal systems aimed to deal
with the Nazis after the war was over and in its contribution to our understanding
of the experiences of war heroes.
The
Murderer at the Door
Kant's short essay
“On a Supposed Right to Lie from Philanthropy” (hereafter “Supposed Right to
Lie”) is a response to a challenge raised by Benjamin Constant in 1797. Kant
begins by quoting Constant's challenges to him. Constant argues:
The moral principle, “it is a duty to tell the truth” would, if taken
unconditionally and singly, make any society impossible. We have proof of this
in the very direct consequences drawn from this principle by a German
philosopher [Kant], who goes so far as to maintain that it would be a crime to
lie to a murderer who asked us whether a friend of ours whom he is pursuing has
taken refuge in our house. . . . It is a duty to tell the truth.
The concept of duty is inseparable from the concept of right. A duty is that on
the part of one being which corresponds to the rights of another. Where there
are no rights, there are no duties. To tell the truth is therefore a duty, but
only to one who has a right to the truth. But no one has a right to a truth
that harms others. (8: 425)
Constant here argues
against Kant that if it is always wrong to lie, then society is impossible, by
which, I believe, Constant means that it would be practically impossible to
protect oneself against violent aggressors. In addition, Constant maintains,
whether or not lying is wrong depends on the circumstances, that is, to whom we
are lying. Murderers do not have a right to the truth and hence no one has the
corresponding duty to tell them the truth. Constant therefore
concludes—allegedly against Kant—that lying to murderers should not be
considered a crime.
The traditional
reading of Kant outlined in the introduction is very much in line with
Constant's general take on Kant. In addition, of course, it takes Kant's
response to Constant in the “Supposed Right to Lie” as more support for the
reading. And if one were to choose a particular part of Kant's essay that
appears to confirm the traditional view, one is likely to choose the following
passage:
. . . if you have by
a lie prevented
someone just now bent on murder from committing the deed, then you are legally
accountable for all the consequences that might arise from it. But if you have
kept strictly to the truth, then public justice can hold nothing against you,
whatever the unforeseen consequences might be. It is still possible that, after
you have honestly answered “yes” to the murderer's question as to whether his
enemy is at home, the latter has nevertheless gone out unnoticed, so that he
would not meet the murderer and the deed would not be done; but if you had lied
and said that he is not at home, and he has actually gone out (though you are
not aware of it), so that the murderer encounters him while going away and
perpetrates his deed on him, then you can by right be prosecuted as the author
of his death. For if you had told the truth to the best of your knowledge, then
neighbors might have come and apprehended the murderer while he was searching
the house for his enemy and the deed would have been prevented. Thus one who
tells a lie, however well disposed he may be, must be responsible
for its consequences even before a civil court and must pay the penalty for
them, however unforeseen they may have been; for truthfulness is a duty that
must be regarded as the basis of all duties to be grounded on contract, the
laws of which is made uncertain and useless if even the least exception to it
is admitted.
To be truthful (honest) in all declarations is
therefore a sacred command of reason prescribing unconditionally, one not to be
restricted by any conveniences (8: 427).1
According to the traditional reading, we should view Kant's responses to
Constant through the lenses provided by, for example, his account of the moral
law in Groundwork. In this work, we learn that all moral
actions must be based on a maxim that can be universalized and that we must do
the right thing because it is the right thing to do—or from duty. When viewed
this way the “Supposed Right to Lie,” including passages like the one quoted
above, is seen as accomplishing two goals: it simply repeats how one ought never to lie as the maxim of lying cannot be
universalized, and it cashes out the implications of this moral principle with
regard to people's enforceable rights and duties against one another. Because lying
is not a universalizable maxim, Kant is seen as saying, lying to the murderer
is a crime. And of course, it is continued, this must mean not only that one
cannot lie to a run of the mill murderer at the door, but also not to the worst
of murderers, such as the Nazis. Lying to Nazis is therefore also a crime.
There are no exceptions to the rule—the truth must be told.
To make things even
worse, in the above passage Kant can be seen as arguing that if you lie despite
the immorality of doing so, you are also legally responsible for the bad consequences
of the lie. So, for example, if the Jew hiding in your house sneaks out while
you are lying to the Nazi, and hence as the Nazi walks away from your house she
actually captures the fleeing Jew, then you are partially responsible for what
happens to the Jew even if it was not foreseeable. But this analysis is clearly
absurd and morally repugnant. If this is all Kant has to say about the issue,
the critics reasonably conclude, then the theory's irreconcilability with any
test of reason is demonstrated.
Despite the popularity of the traditional interpretation of Kant's
argument in the “Supposed Right to Lie” and despite the apparent textual
support of it, I believe it must be mistaken. To start, it seems clear that an
interpretative approach that focuses on issues of general morality is wrong,
because Kant explicitly says throughout the essay that he is limiting the
argument to a discussion of justice or what Kant calls “right.”2
For example, in the block quote in the previous paragraph Kant discusses
only how lying to the murderer should be analyzed from the point of view of
“public justice,” meaning how public courts should respond to such cases (8:
426–29). Kant never discusses first-personal ethics (universalizable maxims and
actions from duty) in this paper. In fact, the only mention Kant gives to
ethics and virtue serves to emphasize that he isnot concerned
with these issues, but only with right or justice.3 Furthermore, in The Metaphysics of Morals,
Kant carefully distinguishes between analyses of justice (right) and analyses
of virtue (ethics), and he rejects the idea that justice is merely an
enforceable subsection of persons' general ethical duties in the way Constant
and the traditional interpretation assume.4
Instead, Kant sees justice as merely concerned with people's exercise of
“external freedom” (setting and pursuing ends of their own in the world),
whereas virtue concerns people's exercise of “internal freedom” (acting on
universalizable maxims from duty). Justice is limited to what can in principle
be coercively enforced (exercises of external freedom—setting and pursuing ends
in the world), whereas virtue is limited to what cannot in principle be
enforced (exercises of internal freedom—doing what is right simply because one
ought to do it.) Hence, although external freedom and internal freedom
constitute freedom as such for Kant, he rejects the view that justice is simply
an enforcement of our ethical duties or a subset of our ethical duties (6:
218–28).
To give one example of particular relevance here—an example I return
to below—even though the maxim of lying is not universalizable, Kant rejects
the idea that not lying or truth telling as such is an enforceable duty of
justice. And the reason is that words do not, in general, have coercive powers
(6: 238). Finally, the fact that Constant and the traditional interpretation
make Kant come across as an unreflective, dogmatic brute also raises a red
flag. Even if Kant is wrong, it is extraordinarily unlikely that he
suddenly—after fifty years of writing philosophy that revolutionized the
Western tradition—presented as flat-footed a defense of his theory as these
interpretations suggest. The sympathetic reader will therefore be most
skeptical about ascribing to Kant such an interpretation. But is there an
alternative, more plausible reading of Kant on the question of lying?
Before turning to what I believe is the better, and fortunately also
philosophically and morally more reasonable interpretation of Kant's essay on
lying, let me note why three alternative, sympathetic defenses of Kant's
account of the problem of lying to the murderer are equally unsupported by the
text. First, one might emphasize that on Kant's account you never have to
answer people's questions just because they ask.
There is nothing morally problematic
about refusing to answer questions from murderers. Instead, the homeowner may
simply ask the murderer to go away as it is none of his business who is in his
house. The claim is that Kant's account of truth telling neither entails that
one has a duty to disclose information to just anyone, let alone to strangers
and murderers, nor that one has no right to privacy. Second, it is tempting to
respond to the problem by saying that on Kant's account we can answer, “yes,
Ms. X is in the house, but you are not allowed into my house.”
The homeowner
may then continue by saying that if the murderer has some unfinished business
with Ms. X, he better contact the police and settle the matter of controversy
in a public court of justice. Yet, it is clear that these two responses do not
permit us to conclude that we can lie to the murderer at the door. Moreover,
these responses are explicitly ruled out by the way in which Kant sets up the
example. Here, Kant emphasizes the questions at hand:
first . . . whether
someone when he cannot evade an answer of “yes” or “no,” has theauthorization (the right) to be untruthful. The second
question is whether
he is not, indeed, bound to be untruthful in a certain statement which he is
compelled to make by an unjust constraint, in order to prevent a threatened
misdeed to himself or to another (8: 426).
Kant therefore
explicitly says that he is talking about cases in which someone is unjustly
coerced into saying something to avoid wrongdoing to oneself or someone else
and cases in which the person answering the door does not have the option of
asking the murderer to go away.
A third, also ultimately unsuccessful, way of trying to get out of the
problem involves appealing to the Kantian idea that one does not (technically)
know whether the victim is in the house. After all, one cannot be sure whether
the person sought is (still) in the house, and so one might argue that one can
truthfully say that one simply does not know. Yet Kant also rules out this
response in the opening pages of the essay. Kant emphasizes that at stake is
not a right to the “objective truth” as this is “tantamount to saying
that . . . it is a matter of one's will whether a given proposition is to be
true or false,” which is nonsensical (8: 426). Instead, what is at stake is
“truthfulness” (ibid.), or telling “the truth to the best of your knowledge”
(8: 427). Hence, if to the best of your knowledge the victim is in your house,
then the truthful answer is that the victim isin your house.
The
Missing Pieces in Traditional Interpretations of Kant's Analysis of Lying to
the Murderer at the Door
We noted above that Kant's analysis of lying to the murderer at the door
in the “Supposed Right to Lie” is an analysis of the problem from the point of
view of justice or right and not from that of ethics or virtue.5 So why, then, and in which sense does Kant mean that lying is
unconditionally wrong and punishable from the point of view of right? To see
this, let us first pay attention to the ways in which lying is and is not a
wrong according to Kant's Doctrine of Right.
In this work, Kant argues that everyone is born with a right to freedom, or a
right to “independence from being constrained by another's choice . . . insofar
as it [one's exercise of external freedom] can coexist with the freedom of
every other in accordance with a universal law” (6: 237). On Kant's theory of
right, to interact rightfully is to set and pursue one's own ends in space and
time—to exercise “external freedom”—in ways reconcilable with other persons'
right to do the same under universal law.6 Interestingly, on Kant's account, to lie as such is therefore not
necessarily to wrong another person from the point of view of justice.
Others
do not have a right against you that you tell the truth, because if they did,
they would have an enforceable right to what is yours (your information), and
this is irreconcilable with your innate right to freedom. Hence, in contrast to
what Constant thinks, Kant actually rejects the claim that a person has a right
against another that he tells her the truth. Indeed, against Constant Kant
argues that with regard to merely the question of whether or not a person has a
right against another that he tells her the truth, it is irrelevant whether or
not telling the truth harms anyone. A person simply does not have a right
against another person that he tells her the truth.
In the “Introduction to the Doctrine of Right,” Kant expresses the above
points by arguing that the innate right to freedom is to be “authorized to do
to others anything that does not in itself diminish what is theirs, so long as
they do not want to accept it—such things as merely communicating his thoughts
to them, telling or promising them something, whether what he says is true and
sincere or untrue and insincere . . . for it is entirely up
to them whether they want to believe him or not” (6: 238). Words in general do
not have coercive power on Kant's view. Although we will return to two
exceptions shortly, the general point is that I cannot obtain material objects
belonging to others simply by uttering words.
Hence, I can say whatever I want,
including telling a lie, because simply by uttering my thoughts I cannot
deprive others of what is theirs; they can, after all, simply ignore what I am
saying. It's a “sticks and stones” point. From the point of view of justice,
therefore, you do not wrong another simply by refusing to give him some
particular piece of information or simply by lying to him. Moreover, it is
totally up to you what information you want to share with another and whether,
in fact, what you say is insincere or untruthful. Indeed, as in the case of the
murderer at the door, if someone forces you into a situation from which you
cannot escape unscathed without giving up your information, this person wrongs you,
not the other way around.
This is why Kant says in the “Supposed Right to Lie,”
as noted above, that the case of the murderer at the door involves one person
(the murderer) subjecting another to “an unjust constraint” (8: 426). It is an
unjust constraint because the murderer at the door does not have a right to
obtain your information and hence threatening you to get it wrongs you.
To lie as such, therefore, is not to wrong another person from the point
of view of justice, because lying as such is not a coercive act, understood as a
hindrance of someone else's external freedom (her ability to set and pursue
ends of her own with her means). In general, lying does not involve coercively
taking something that belongs to another person, and so it does not involve
depriving another of her external freedom. This is also why, from the point of
view of justice, the only two times lying as such is a wrong against another
person are when the lie deprives another of her rightful honor (defamation) and
when it is part of a contractual negotiation.7
In these cases, the lie serves to coercively deprive someone else of
something that rightfully belongs to her, either her reputation or something
that would not be agreed to except under false pretenses. Lies in these
scenarios are acts of coercion as they take some of the other person's means
without that person's consent, which is to hinder the other person's external
freedom. In a case of wrongful defamation a person is deprived of her rightful
honor by being denied public recognition for the life she has lived. Actions
are wrongly imputed to her or actions she has done are denied her. By so doing,
the defamer treats the defamed person's honor or reputation as if it were her
own means. Similarly, in the case of contracts, instead of obtaining a thing or
service through consent, the liar obtains it through deception. Lying as part
of contractual agreements is akin to stealing and not only voids the contract,
but also is a punishable wrong.
In light of the above, we can appreciate why, in the “Supposed Right to
Lie,” Kant does not argue that lying to the murderer at the door is a
wrongdoing because it involves wronging themurderer.
Against Constant's interpretation of Kant's position, Kant denies that lying to
the murderer is to commit a crime against the murderer. Indeed, because the
murderer does not have a right to your information, he actually wrongs you by threatening you into telling the
truth. So, of the murderer and the liar, the murderer is the one committing the
crime, not the liar.
But Kant's account does not stop here, for the liar does do wrong, even
though it is not against the murderer. Kant surprisingly argues that the liar
commits wrongdoing “in general” (8: 426, 429) when she lies. The duty not to
lie is not a duty of justice we hold against any particular other person, say
the murderer, but a duty each one of us has towards “everyone” (8: 426). Kant
expresses this point also by saying that though by lying “I in fact wrong no
one, I nevertheless violate the principle of right with respect to all
unavoidable necessary statements in general (I do wrong formally though not
materially)” (4: 429). I do not wrong anyone in particular (“materially”), but
I wrong everyone by making a condition of rightful interaction impossible in
principle (“formally”).
Rather than this making lying less problematic from the
point of view of right, however, Kant sees it as making it more problematic: by lying one does not
wrong another particular person, but humanity, by acting in a way
irreconcilable with rightful interactions as such (ibid.). Lying makes it
impossible to interact both in a way consistent with rightful honor and
contracts and also generally because it undermines the trust even mundane
consensual interaction requires. For example, actions requesting information
about directions, about meetings, or about other people and so on are all
incompatible with lying. All such consensual, rightful interactions rely on
truth telling. Hence, lying is wrong in general as it is inconsistent with a
world of rightful interaction, even when—as is generally the case—it is not a
wrong of justice against another, particular person.8
At this point, it is
important to note one more important aspect of Kant's analysis of the murderer
at the door. His primary aim is to establish how a public court of justice
should consider cases where someone faces situations in which she could either tell
the truth or lie to a potential wrongdoer (8: 427). The focus is not to unravel
complicated scenarios such as those involving Nazis and other unjust regimes,
but on how a just state's legal system should handle cases involving an
innocent private person's imparting of information about a victim to a
potential wrongdoer. His basic claim is that if a person chooses to stay out of
the interaction between the murderer and his potential victim by telling the
truth to the potential murderer, then a public court of justice cannot punish
her for having done so. In these situations, only the murderer can be punished
because the entire action is traceable only to him. In contrast, when a person
lies to someone, she deliberately deceives another person (the potential
murderer) with regard to his perception of the empirical world, and in this way
she becomes a co-author of the action undertaken. The liar, therefore, is
punishable for the bad consequences of the lie.
To illustrate the
logic of Kant's reasoning, let us first consider a case of lying not to a
murderer, but simply to another person. According to Kant, if someone asks you
for directions and your lying answer sends him into an unsafe neighborhood
where he is robbed, then you are partially responsible for the resulting
robbery despite having no intention or foreknowledge of the robbery. Through
lying, you have chosen to deceive another with regard to the correct
description of the world in which she acts, and this deception is, in part,
what allows the robbery to take place. Hence, you are responsible for the bad
consequences of your lie. Insofar as this example helps to illustrate the case
of lying to the murderer at the door, it is important to take care not to
misunderstand what Kant is saying. Importantly, we should note that Kant's
analysis as outlined above proceeds on the assumption that a friend “has taken
refuge” in your house (8: 425). The argument, in my view, proceeds to establish
two points. First, you cannot be under a legal obligation to lie to protect
someone who has taken refuge in your house—not even your friend. Otherwise,
anyone fleeing into another person's home would have a legal right against the
homeowner that they be helped in their escape.
Moreover, truth telling on the
part of the homeowner—or staying out of others' troubles—would be punishable.
If this were the case, then persons would be seen as having the right to choose
to put each other into situations where they must lie to dangerous murderers
rather than having the option to stay out of it by telling the truth. And Kant
maintains that because persons have an innate right to freedom, a public court
can neither give any of its subjects a right against others to be helped in
this way, nor can courts fail to respect people's rights to avoid wrongful
interactions by telling the truth. Therefore, a person cannot be seen as
committing a wrongdoing against a person hiding in her house if she refuses to
take part in the lying interaction with the murderer. In contrast, and this is
the second point, by unilaterally choosing to partake in the interaction,
namely by lying about the location of the victim, the homeowner also becomes
responsible for the unintended, yet bad consequences of the lie. The reason is
that by lying you choose to take part in determining a particular course of
actions by setting up a deceptive framework in which another acts.
That is to
say, when you lie to the murderer, it is obviously not your intention to help
the murderer capture the victim—quite the opposite. But if your action (lie)
actually makes it possible for the murderer to get to his victim, then you are
legally responsible (“you can by right be prosecuted”) for these bad
consequences. It may, after all, be the case that the person who fled into your
house is counting on you to tell the truth, and while the murderer is searching
the house she plans to make her escape. By unilaterally choosing to try to set
up a deceptive framework for the murderer and his victim, even under the best
of intentions, you run the risk of being wrong; by taking that risk, you incur
responsibility for the bad consequences.
To see more clearly
which scenario Kant is considering, we may distinguish the case of the person
who has taken refuge in your house from three other cases where your decision
to lie is not a unilateral decision of the kind described above. First,
consider the case in which the fleeing friend asks you both whether she can
hide in your house and whether you will lie for her. You answer “yes” to both
questions, but in fact you have lied, because you do not intend to lie for her.
In this scenario, clearly, you become an accomplice in the murder when you tell
the murderer where your friend is. One cannot lie to one's friend (saying that
one will lie to the murderer), tell the truth to the murderer (about the
friend's location) and then claim that because one told the truth to the
murderer, one is not legally responsible for the bad consequences of the lie to
one's friend. This is therefore not a case in which one's right to stay out of
a situation must be protected, for there must be truth telling throughout the
process in order to stay out of it.
A second case goes as follows. Assume that you honestly promise the
fleeing friend that you will lie, but as a matter of fact, it turns out that,
face to face with the murderer, you are so scared that you tell the truth,
revealing your friend's location. I believe that Kant would say that you are
not to be punished also in this case. Consenting to lie on behalf of a friend
cannot be understood as carrying legal obligations. Others cannot have the
right against you that you perform actions that are wrong in general, such as
lying, even if consensual. That you may not be able to go through with the lie
is a risk that your friend runs by asking you. Hence, even if you consent to
partake, you do not thereby incur legal obligations.9
A third and final case involves the following scenario. Assume that you
and your friend consent and you go through with the agreement by lying to the
murderer. But your friend, despite your agreement to the contrary, chooses to
run out of the house and is caught by the murderer. In this case, the reason
why your friend is captured is not your lie, but either your friend's failure
to act according to what the two of you agreed to do or her decision to act
otherwise despite your agreement. Thus, by acting contrary to the agreement,
your friend assumes the risk and the responsibility of being caught.
The reason I draw attention to these different scenarios is to emphasize
that in the original case Kant is considering only how a public court should
analyze a situation in which someone runs into your house to hide (“takes
refuge”) and you are considering what to do as the murderer is banging on the
door. Kant argues that if you unilaterally choose to partake in what follows by
lying, the fact that you do it from a good heart does not, as such, eradicate
your responsibility for any bad consequences following from your lie. By
telling the truth, in contrast, you do not take part in the interaction, but
leave it open what will happen next: whether the victim sneaks out, whether the
neighbors and you manage to subdue, incapacitate or kill the murderer as he is
searching through your house, or whether the police arrive in time to stop the
murderer. In other words, if you unilaterally choose to lie you must be willing
to face the legal consequences if your judgment is faulty and your lie actually
ends up helping the murderer capture the victim.
Going
beyond Kant's Discussion of Lying to the Murderer: The Nazi Case
As emphasized above, I believe Kant's discussion in “Supposed Right to
Lie” is primarily aimed at establishing how a public authority should deal with
cases involving subjects who have lied from benevolent intentions. Yet I do not
think it constitutes the complete Kantian analysis of all cases of lying. In
particular, it does not cover the case in which the murderer at the door is a
Nazi officer. In order to deal with this case, we must turn to two important
arguments in the Doctrine of Right.
In the first part, on private right, Kant argues that choosing to stay in the
state of nature is not necessarily to wrong another particular person, but yet
it always involves committing wrongdoing in general, indeed “in the highest
degree.” In light of this account, we will see why, on Kant's account, the only
times general wrongdoing by lying can be legally punishable occur when we lie
to, or as, public officials. In the second part, on public right, Kant argues
that the public authority, although non-voluntary, is not absolutist. Kant's
non-absolutist conception of the sovereign explains why once we introduce the
Nazi officer into the example, the situation changes, namely it is one in which
rightful interaction is no longer possible at all.
The Nazis did not represent
the public authority, but its antithesis. Therefore, no one was under an
obligation to tell them the truth and the Nazis did not have the right to
punish. The issue of rightful punishment therefore did not arise until the
legitimate European states once again were able to regain power, and I will
argue that Kant's account seems particularly well suited for critiquing their
reasoning regarding the punishment of those who had taken part in the Nazi
movement.
Let us start with the argument concerning the impossibility of justice
in the state of nature. In the first part of the Doctrine
of Right, Kant gives an account of private right—or right within
the parameters of the state of nature, understood as the pre-state condition.10 Kant here argues that because we are embodied beings, the innate right
to freedom gives us a right to our bodies. In addition, however, he argues that
we need an account of how we can acquire “external objects of choice” as our
own, because without being able to acquire and have empirical things as our
own, it is impossible to set and pursue ends of our own in the world—or to be
externally free.
Kant distinguishes three categories of external objects of choice,
making three accounts of private right necessary, namely private property
(things), contracts (services), and other persons (fiduciary relations,
including family). The general question posed in the private right section of
the Doctrine of Right concerns
how to give an account of the acquisition and having of external objects of
choice that is reconcilable with everyone's innate right to freedom.
Kant's
rather remarkable claim is that it is impossible to conceive of such
reconciliation within the conceptual framework of the state of nature. For
reasons we cannot engage here, Kant argues that problems relating to assurance
and indeterminacy concerning the correct specification and application of the
abstract principles of private right cannot in principle be solved in the state
of nature. Only by introducing the concept of a public authority, or civil
society, is it possible to give an account of rightful acquiring and having the
three types of external objects of choice.
Consequently, Kant concludes the
account of private right by saying that we have an enforceable duty to enter
civil society and that insofar as one chooses to stay in the state of nature,
one does wrong in the highest degree.11
Because private individuals cannot in principle solve the problems of
assurance and indeterminacy, the establishment of a public authority is
constitutive of rightful interaction in the empirical world. Only by
establishing a common agency—a public agency through which we act together—can
we enable rightful interactions in the world. But important for our analysis of
the Nazi case is that just punishment is impossible in the state of nature.12
There is no public authority with standing to resolve particular
disputes between disagreeing individuals, and consequently no rightful
punishment can occur there either. This is why Kant does not discuss punishment
as part of his doctrine of private right; just punishment is impossible in the
state of nature because private individuals cannot punish rightfully. This is
also why Kant's analysis in the “Supposed Right to Lie” simply addresses the
question of how an already instituted public courtshould
address the problem of lying when positing laws governing private conflicts.
To fully elicit the added complexity when the murderer is a Nazi, it is
useful also briefly to explain Kant's claim that choosing to stay in the state
of nature is to do wrong in the highest degree. Because rightful interacting is
seen as impossible in the state of nature, the state of nature is necessarily a
state of wrongdoing. Choosing to stay in this condition is therefore to reject
the possibility of rightful interaction between yourself and others, which is
why you can be forced to leave the state of nature. Yet, it is important to
note that if none of the interacting parties wants to enter civil society, then
they do not wrong one another by choosing to stay in this condition.
Because no
party wants to interact rightfully with the others, they all choose to interact
in ways that are at most devoid of justice. That is to say, if
everyone happens to agree on everything and coercion is never needed, then
their interactions are merely “devoid of justice,” whereas if they do disagree
on various issues and decide to solve their disagreements with violence, then
there is “injustice” (6: 307).13
But regardless of whether or not there are disagreements and coercion,
by refusing to interact in rightful ways, namely by refusing to institute a
public authority, they refuse the possibility of justice. And to do this—to
refuse the possibility of rightful interaction—is to do wrong in the highest
degree (6: 305–8, 311–13).
Finally, if all but one refuse to enter civil
society and the one is too weak to force the others to do so, then those who
refuse to enter civil society both wrong the one and do wrong in the highest degree. That
is, the condition “given the intention to be and to remain” in the state of
nature is not met (6: 307), as the one does not have the intention to be or to
remain in this condition. The one wants to leave, but cannot. In this case,
rather, the one does not have “to wait for actual hostility; one is authorized
to use coercion against someone who already . . . threatens
him with coercion” (ibid.).
The final piece of exegesis needed before we can return to the case of
the Nazi officer concerns Kant's account of public right. The main aim in the
public right section of the Doctrine of Right is to delineate the institutional
requirements constitutive of civil society, and hence concerns the way in which
Kant's non-voluntarist account of political obligations does not result in an
absolutist conception of political legitimacy. More specifically, Kant argues that
the public authority must be set up as the rule of public law for everyone born
on the land.
To do this, the sovereign is set up as a tripartite authority
without private property and private interests; the laws protect the private
rights of each person born on the land, and finally there must be a certain
institutional structure to reconcile the sovereign's rightful monopoly on
coercion with the rights of each citizen by giving citizens public right claims
on their public institutions. For example, the sovereign must institutionally
guarantee unconditional poverty relief for all its citizens and it must provide
public, institutional control over economic and financial systems so that all
citizens can interact within these systems as free and equal.14
It is important to
appreciate how this account of the legitimacy of a public authority has
implications for when lying deserves legal punishment. First note that in
“Supposed Right to Lie” Kant is simply evaluating how public courts should
evaluate private persons who lie to potential wrongdoers. He is not considering
how a public court should deal with cases where private citizens lie to public
officials, whether in court, to the police or to anyone else in her capacity as
a public officer. He is also not considering how public courts should deal with
cases where the lies issue from people acting in their capacity as public
officials. What, then, are the conclusions we should draw from Kant's account
of the public authority with respect to these kinds of lies? First, if one is
lying to a representative of the public authority, one is not lying to a
private person, but to a public official. The public authority represents all
of us and yet no one in particular; it is not a private person, but a public,
artificial person (an institution) that we have created because we need a
common agency through which to act together.
Therefore, if one lies to a public
officer or one lies under oath in court, then one lies to “everyone” and not to
anyone in particular, or one commits a “formal” rather than “material” wrong.
Similarly, if a person in her capacity as a public official lies about her
actions in that capacity, then she commits a formal wrong too, because in so
doing she fails to represent everyone, and yet no one in particular. By lying
and deceiving the people with respect to the actions of her public office, she
effectively privatizes the public office by allowing her private concerns and judgments
to determine how the public authority should function.
Such a person can no
longer be entrusted with holding a public office and she can be punished for
having corrupted the public nature of the office. Corruption consists in the
fact that no longer does the public institution represent everyone, but only
the private individual occupying the office. Hence, on this account lying that
wrongs humanity (lying that is a wrongdoing in general) is punishable when the
lie involves deception issuing from the public authority or when the deception
is directed to the public authority. Moreover, because the lie wrongs everyone,
one commits a public crime (a crime against the state) rather than a private
crime (a crime against another private citizen).
Lying to the Nazi Officer
I
take it that the analysis of the Nazi officer is different from that of the
general run of the mill murderer in that the Nazi officer claims to be
representing the public authority or the sovereign. As we saw above, citizens
are legally required to abstain from lying to public officers. Hence, if the
Nazi represents the public authority on Kant's view, then one would be required
to abstain from lying to the Nazi even though one is permitted to lie to
ordinary murderers. But the antecedent is not fulfilled, for the Nazi would not
count as representing a public authority. To see why the Nazi cannot be taken
to represent the public authority on Kant's view, we may start by exploring
Kant's distinction between the despot and the sovereign.
According to Kant the
heart of the distinction between the despot and the sovereign concerns the
nature of the public institutional structure of civil society, especially and
crucially the way in which the sovereign is constituted by the rule of public
law. The sovereign is a law-governed, tripartite, public institutional
authority founded on a commitment to each of its citizens' innate right to
freedom. This commitment involves securing the citizens' protection in terms of
their rights to their bodies, their acquired private rights and their public,
institutional rights. In these ways, the public, institutional system of the
public authority as a whole is made consistent with the innate right rights of
each citizen.
The Nazi regime was exactly not such a regime, because early on
it denied private and public rights to large groups of the population,
including the Jews, before it proceeded to set up a legal system that
institutionalized not only the deprivation of rights but also the denial of
some citizens' rights to their own bodies. The Nazi regime did not represent
“everyone, but no one in particular” by securing everyone born on the land the
same (private and public) rights as citizens.
Therefore, it was not a public
authority. That is to say, Nazi Germany was exactly not civil society, but at
best despotism. As Kant explains in theAnthropology
from a Pragmatic Point of View,15 the republic or civil society is
“Power with freedom and law” (7: 331), whereas despotism, in contrast, is “Law
and power without freedom” (7: 330). At best Nazi Germany was despotism at its
worst.
But this description
seems, in fact, to be far too generous to the Nazi regime. Kant further
distinguishes despotism from an even worse condition, namely “barbarism.”
Barbarism is “Power without freedom and law” (7: 331).16 One might reasonably argue, then, that
the Nazi officer—and certainly after the “final solution”—is not only not representing a sovereign, but he is
representing something much worse than the everyday despot because the Nazi
regime upheld neither law nor freedom, but systemic might aimed at the
destruction of rightful conditions for the people.
This is therefore not a case
of one particular, private person possibly committing a wrongdoing against
another particular, private person, as those who took part in the Nazi movement
took part in an institutionalized attempt to destroy rightful relations as
such. It was an attempt to institutionalize a coercive system in which there is
no innate right to freedom at all on the land, which is barbarism at its
worst.17
As long as the Nazis were in control,
the citizens of Germany and the occupied European states not only found
themselves in a state of nature, but in a state of barbarism. Therefore,
fighting the Nazis—by lying or killing—was not to wrong them. Moreover, because
Nazism is in fact much worse than the state of nature, rightful punishment in
any territory controlled by the Nazis was in fact impossible—whether of
ordinary murderers or extraordinary ones like the Nazis themselves.
The analysis does not
stop here, however, as it is important to be aware that from the normative
point of view of the Doctrine of Right the rightful sovereign of the citizens of
individual European countries occupied by the Nazis was the sovereign that
existed before the occupation. Hence, even though the executive power was de
facto incapable of enforcing the laws of the state during the occupation, these
laws were still the ones that rightfully governed all interactions within the
boundaries of that state.
Consequently, once the European regimes regained
their rightful power in the mid-1940s, the aim of the European legal systems
was to re-establish the proper rule of law, including by punishing those who
had broken the laws during WWII. The laws each state applied and enforced to
actions undertaken during the war were therefore the same as those that had
been applied and enforced before the war.
A particular strength
of the foregoing Kantian analysis is that it provides the basis for a critique
of what the European legal systems aimed to accomplish once the war was over.18 Their aim was to re-establish the
proper rule of law, including by punishing the private crimes committed during
this period—whether by Nazis or ordinary citizens—as well as punishing those
who took active part in the Nazi movement and thus committed public crimes
against the state itself. On the one hand, therefore, everyone—whether a Nazi
supporter or not—could be legally punished for any private crimes committed
against other private citizens during the war. That is, in line with Kant's
account above, the individual European legal systems did not regard the Nazis
as representing the sovereign, and consequently the Nazis' individual actions
of aggression against other citizens were seen as private crimes of one person
against another. On the other hand, those taking part in the Nazis movement
were punishable for having taken part in a coordinated, violent revolution
against the sovereign, which is to say that they were also to be charged with
their shared, public crime—their common crime against the state itself.19
Because the public crime of taking
part in a violent revolution (trying to destroy the rightful state) is the
worst type of public crime, Kant considers it “high treason,” for which the harshest punishment,
death, is deserved (6: 320).20 Finally, no European legal system
after WWII held any of its citizens criminally responsible for not taking part
in the active resistance against the Nazis, including for not lying to
threatening Nazis.
Those who tried to stay out of it by telling the truth when
threatened were not, and according to Kant should not have been, punished.21 The reason those who found themselves
unable actively to resist, including by lying, were rightly not punished is
that people cannot be legally obliged to take steps to stop others' wrongdoing
or for refusing to do actions that are wrong in general, such as lying and
killing.22
Concluding Remarks
I
would like to conclude by drawing out what I take to be two further advantages
of Kant's account. These concern our understanding of war heroes. It is
important to remember that under normal circumstances where there is no danger
to oneself, assisting others by moral means is an act of beneficence and thus a
duty of virtue and not a duty of justice according to Kant. Under the
extraordinary circumstances of war, however, actions of active resistance
involve wrongful acts against a powerful, unjust occupying power, which include
the risk of being unjustly killed as a result.
The people taking part in the
resistance movement in WWII were risking their lives by undertaking violent
actions against the Nazis in an effort to increase the likelihood that rightful
conditions were possible in the future. Doing this is neither a duty of justice
nor a duty of virtue according to Kant. Being a hero is not something anyone
can be legally or ethically required to do. This is why many of those who took
part in the active resistance were publicly acknowledged—by means of various
national medals of honor—as heroes after the war was over. Kant's account makes
perfect sense of why we see some actions as heroic, or supererogatory (going
beyond duty), and others not.
Finally, note that
this analysis brings to light an aspect of war heroes' experiences that more
popular accounts fail to make good sense of. According to these more popular
accounts, violent heroic responses to aggressors are morally right and hence
unproblematic. These accounts therefore struggle to capture the moral cost or
stress those who use violence against aggressors so often experience. For
example, it is a known fact that members of resistance movements during WWII
typically struggled with sadness and depression, nervous disorders and various
other psychological problems later on in life.
On the more popular accounts,
this is at the very least strange.23 After all, these individuals did what
was right; they acted heroically by violently resisting the unjust aggressors.
Indeed, on the more popular accounts, it seems that mental suffering or even
failure simply to feel good about what one has done actually reveals a lack of
virtuous character. On these accounts, virtuous people would feel as good about
violently resisting aggressors as they feel about being generous, friendly or
compassionate.
In contrast, the Kantian view I have defended can make sense of
this puzzling phenomenon without attributing to the war heroes a lack of
virtuous character. One reason why members of resistance movements often find
their past experiences so difficult to deal with issues from their use of
violence. They committed generally wrongful actions against other human
beings. By fighting the Nazis, the heroes did not wrong the Nazis, but they did
wrong in the highest degree by undertaking generally wrongful (violent) actions
against other human beings under conditions where rightful interaction was
impossible.
They killed and injured other human beings because rightful
coercion, as enabled by a public authority and public courts, was impossible.
Hence, they were facing conditions in which their only possible, active response was to use might consistent
with a rightful future. And although they bore no fault or responsibility for
their situation as they were forced into their situation by the Nazis
themselves—it was the Nazis' fault—their violent response is still coming at a
moral, in the sense of normative, cost. As embodied human beings, therefore, we
can be forced into situations from which there are no morally unproblematic
exits.24
Hence, even if we manage to act
heroically by fighting the aggressors, there is a moral cost involved as it
involves acting in ways inconsistent with rightful interaction. That so many of
the WWII war heroes later found their violence hard to live with is therefore
not a symptom of their lack of virtuous character, but rather a reflection of
their commitment to virtue and right—or morality in general—under circumstances
where virtuous, rightful interaction was coercively deprived them. I would like
to thank Lucy Allais, Zach Hoskins, Arnt Myrstad, Arthur Ripstein, Shelley
Weinberg and the two anonymous reviewers at the Journal for Social Philosophy
for their input on the ideas and presentation of this paper. Thanks also to the
audience at the Twenty-Sixth International Social Philosophy Conference
(NASSP), July 30–August 1, 2009, St. Joseph's University, Philadelphia, and to
the audience and my commentator Robert Clewis (Gwynedd-Mercy College) at the
APA Eastern Division meeting, Philadelphia, December 27–30, 2008, for their
stimulating responses to earlier versions of this paper.
No comments:
Post a Comment