The Kantian Project in Modern International Legal Theory 1. Introduction In the latter half of the twentieth century, the influence of Kant's moral, political and legal philosophy increased. This development can be attributed to the impressive and avowed Kantianism expressed by John Rawls in his seminal work on the political foundations of the state.1 Attention should also be drawn to the Kantian theories developed by Habermas, Alexy and Gewirth.2 These examples illustrate the continuing relevance Kant's thought has for modern practical philosophy. During this same period, public international lawyers became reacquainted with Kant's work on international law. His thesis that international law requires the development of institutions which express the general will of sovereign states to ensure world peace and to solve international conflict was inspirationally captured in the genetic documents of the United Nations.3 Despite the apparent problems with the United Nations system - such as the fact that its legal authority being firmly rooted in state consent, and the connected problem of effectiveness - it still can be understood as an important move towards Kant's vision of international legal order. It should come as no surprise, then, that in the last 10 years or so there has been a revival in Kantian international legal theory. Among others, Rawls has made his own contribution4 and Tesón has contributed the work, A Philosophy of International Law.5 It is Tesón's work which is the subject of this review. 1 Rawls, A Theory of Justice (1972). On the relationship between Kant and Rawls, see Johnson, `The Kantian Interpretation', 85 Ethics (1974) 58; Darwall, `A Defense of the Kantian Interpretation', 86 Ethics (1976) 164; Rawls, `Kantian Constructivism in Moral Theory', 77 Journal Of Philosophy (1980) 515; Hill, `Kantian Constructivism in Ethics', 99 Ethics (1989) 752; and Doppelt, `Is Rawls' Kantian Liberalism Coherent and Defensible?', 99 Ethics (1989) 815. 2 Habermas, The Theory of Communicative Action, vol. 1, Reason and the Rationalisation of Society (1986); Habermas, Between Facts and Norms (1996); Alexy, A Theory of Legal Argumentation (1989); and Theorie der Grundrechte (1996); and Gewirth, Reason and Morality (1978). On the relationship between Habermas and Kant, see MacCarthy, The Critical Theory of Jürgen Habermas (1978) 325-327. For analysis of the relationship between Kant and Gewirth, see Part II of Boylan (ed.), Gewirth: Critical Essays on Action, Rationality, and Community (1999). 3 See, for example, the preamble to the Charter of the United Nations (1945). Simma et al. consider that `[t]o understand the genesis of the new peace organization, it was not necessary, as was felt in the League period, to refer back to the philosophers of past centuries, to the classical ideas of eternal peace and a European federation for the enforcement of peace'. See Simma et al., The Charter of the United Nations (1995) 2. Despite the understandable anti-theoretical stance taken by the authors of the Charter, the preamble of the Charter clearly reflects Kant's conception of international law. 4 Rawls, The Law of Peoples (1999). For those who are familiar with Rawls' A Theory of Justice, his work on international law must appear somewhat perplexing. In A Theory of Justice, Rawls provides a powerful justification for liberal political philosophy and one might consider that his theory of international law would place liberal constraints upon the permissible conduct of states. In other words, one might think that Rawls would advocate a system of international law based upon a federation of liberal states - which is closely related to Kant's position. However, in his work on international law, Rawls proposes that non-liberal states are permissible in an international legal order. This prima facie contradiction can easily be understood once one understands the theoretical distance Rawls has travelled from the original universalistic conclusions he drew in A Theory of Justice. He has diluted his views in more recent work so that a number of comprehensive world views - some of which are not avowedly liberal - are permissible in a particular state and between particular states. On this move, see Rawls, `Justice as Fairness: Political Not Metaphysical', 14 Philosophy and Public Affairs (1985) 223; Rawls, `The Idea of an Overlapping Consensus', 7 OJLS (1985) 1; and Rawls, Political Liberalism (1993). For commentary on this move, see Hampton, `Should Political Philosophy Be Done Without Metaphysics', 99 Ethics (1989) 791. For discussion on Rawls' conception of international law, see Pogge, `An Egalitarian Law of Peoples', 23 Philosophy and Public Affairs (1994) 195; and Kuper, `Rawlsian Global Justice: Beyond the Law of Peoples to a Cosmopolitan Law of Persons', 28 Political Theory (2000) 640. 5 Tesón, A Philosophy of International Law (1999). References to this work are made in the text. See also Doyle, `Kant, Liberal Legacies and Foreign Affairs', 12 Philosophy and Public Affairs (1983) 205; Sørensen, `Kant and the Process of Democratization: Consequences for Neo-Realist Thought', 29 Journal of Peace Research (1992) 397; MacMillan, `A Kantian Protest Against the Peculiar Discourse of Inter-Liberal State Peace', 24 Millennium (1994) 549; Mertens, `War and International Order in Kant's Legal Thought', 8 Ratio Juris (1995) 296; Ward, `Kant and the Transnational Order: Towards a European Community Jurisprudence', 8 Ratio Juris (1995) 315; Bartelson, `The Trial of Judgment: A Note on Kant and the Paradoxes of International Law', 39 International Studies Quarterly (1995) 255; Bohman and Lutz-Bachmann (eds), Perpetual Peace: Essays on Kant's Cosmopolitan Ideal (1997); Laberge, `Kant on Justice and the Law of Nations', in Mapel and Nardin (eds), International Society: Diverse Ethical Perspectives (1998) 83; Franceschet, `Popular Sovereignty or Cosmopolitan Democracy? Liberalism, Kant and International Reform', 6 European Journal of International Relations (2000) 277; Franceschet, `Sovereignty and Freedom: Immanuel Kant's Liberal Internationalist "Legacy"', 27 Review of International Studies (2001) 209; and Cavallar, `Kantian Perspectives on Democratic Peace: Alternatives to Doyle', 27 Review of International Studies (2001) 229.
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