What has Kant to do with terrorism?

By Thomas Albert Gilly

-stract:

This essay addresses the relevance oI Kant`s moral philosophy and oI Kant`s Science oI Law Ior issues
that are central to the actual debate about terrorism.
The relevance oI Kant`s moral philostphy is demonstrated against the background oI the categorical
imperative, the relevance oI the Science oI Law is discussed with special regards to both the concepts oI
tyranticyde/regicide and the topic oI 'revolution`s legality.
The project that consists oI the establishment oI an objectively and universally valid ethical norm that has
its roots in reason comes to the Iore oI the Iirst part oI the debate. The impact oI the test oI
universalization upon issues that are central to the terrorism debate varies as a Iunction oI the diIIerence
between the original project (Kant) and the projects development by Habermas.
The relevance oI Kant`s critical comments about the legality oI revolution and resistance Ior the
deconstruction oI terrorism`s ideology and ethics is the issue that is central to the second part oI the
essay`s discussion.




Prologue:

The US military intervention in Iraq came rapidly to the Iore oI the public debate. The issue has been the
subject oI polemics and it continues to be highly controversial.

Act only according to that maxim by which you can at the same time will that it would become a
universal law.

This is the Iirst Iormulation oI the 'Categorical Imperative. Its creator is the German philosopher
Immanuel Kant.
Suppose that the precept is the basic ethical rule that shall govern the UN deliberations and debates.
Suppose Iurthermore that the same precept has been shared by all members oI the UN during the
deliberation about the pros and cons oI a military intervention in Iraq. Keep in mind that the military
intervention in Iraq, Irom the US viewpoint, has been considered as an absolute necessary issue both with
regards to global and homeland security requirement and with regards to the Iight against terrorism.
The categorical imperative addresses a moral obligation to each individual, and it requires Ior
individual deliberation. Suppose that each oI the UN representatives, when deliberating about the
intervention, was applying the precept to him/herselI.
During the deliberations nobody could reasonably cast doubt on the empirical evidence oI the
allegations addressed by the US and the UK governments; there was little doubt about Iraq`s arsenal oI
chemical weapons, Iraq`s involvement in terrorism could hardly be questioned and Iraq`s use oI chemical
weapons against civil population and Iraq`s permanent violation oI human rights all these issues were
more or less beyond doubt.
To be relevant Ior demonstration our think-piece can not miss these considerations. It Iollows that
we have to share the idea that the ground oI the accusation was beyond doubt during the application
period oI the categorical imperative.
Here is not the place to engage in a debate about the real motivations oI those nations that were
categorically opposed to a military intervention in Iraq; nor can it be our aim to question the legitimacy oI
the oIIicially developed arguments against it. For our purpose, it is suIIicient to suppose that the camp oI
the cons simply demonstrated their preIerence Ior a political and diplomatic solution oI the aIIaire.
Let us now discuss the question whether the US position and its concrete outcome, under such
conditions and given these circumstances, can be justiIied with reIerence to the Iirst Iormulation oI the
categorical imperative. Obviously the answer is depending on the test oI the position`s universalization.
At Iirst glance the test is negative; iI the position were susceptible to be universalized, to be shared
as a universal law, opposition against the US option could never come into existence. And yet such
reasoning is irrelevant in this that it presupposes that each oI the state representatives would have been
able to Iollow the categorical imperative or would have applied it correctly. As it could be that even the
US representative Iailed in applying it (correctly), it could be that the opponents Iailed too. Another
observation comes as support: As the categorical imperative is an imperative that is to be observed by
each individual only, the test oI universalization is to be scheduled by each individual. It Iollows that the
question whether an act is morally just or unjust can never be answered with reIerence to a majority oI
people who think the act as oI morally unjust, simply because collective behavior, even iI it is shared by
the majority oI people, can never be an indicator oI the maxim`s eIIectiveness. AIter all it could be that
the opponents` opinion, even iI majority, is rooted in the maxim to act and behave according to particular
interests.
In Iact, the US position is perIectly in accordance with the imperative. To better understand that the
US position is perIectly in accordance with the categorical imperative, that it can be considered as an act
or a position which is rooted in the will that it would become a universal law, the Iollowing questions are
to be considered:

'Is it permissible to reIrain Irom reacting against a non democratic totalitarian state that is not
willing to accept the internationally scheduled control oI its chemical weapons and that, deliberately and
irrespectively to the various UN resolutions continues to stock and produce such weapons in an
uncontrolled manner?
Obviously it is not permissible! II this were permissible, the moral proposition that is involved and
that Iollows: 'it is permissible to stock, produce and threat to use chemical weapons in an uncontrolled
way, would result in a contradiction. Indeed the uncontrolled production and the threat to use such
weapons presuppose the holder`s intention to use them at a given moment. Given the catastrophic
consequences oI such a screen play, it Iollows that the moral proposition: 'it is permissible makes no
longer sense; it annihilates itselI Irom a logical viewpoint because it presupposes moral decision making
and the existence and the continuity oI an institutional or individual decision maker, which, in the worst
oI the cases, does no longer exist
To turn it in another way the US position is to be considered as perIectly in accordance with the
categorical imperative because the universalization oI the moral proposition that is in question here, iI
applied, puts the subjects and/or institutions that are concerned at existential liIe risk, the observation that
the detention and production oI ABC weapons is legally prohibited being put aside.
The same observation applies to the initial question: 'is it permissible to reIrain Irom reaction
against? in this that the lack oI reaction logically implies that the existential conditions oI the subject
who is engaged in the debate about the moral question (the questioner) is put at liIe risk
An analogy between this moral proposition and the other one that is involved in the question: 'is
lack oI reaction against states that are obviously engaged in terrorism activities, either directly or
indirectly, and that violate constantly human rights permissible? II it were the moral proposition that
Iollows would be: Terrorism is a universally valid law. Obviously the proposal annihilates itselI. The
moral proposal: 'terrorism is permitted and holds Ior a universal law, is contradicted by the circumstance
that terrorism is an issue that is universally condemned (by the UN resolutions).
Let us now apply the test oI universalization with reIerence to a scheme that, at Iirst glance, shows
little diIIerence. It is the scheme developed by Jrgen Habermas with reIerence to and against the
background oI Kant`s categorical imperative.
Habermas` extrapolation oI the categorical imperative culminates into the Iocal center`s shiIt Irom
the subject to inter-subjectivity. This assumes that the principle oI the norm`s universalization is no
longer depending on the individual subject who behaves in accordance with the maxim by which he /she
can will that his / her behavior / act would become a universal law, but it depends on the condition that all
concerned people would accept the consequences and secondary eIIects oI the norm`s universal
observation upon the satisIaction oI the interests oI each oI all and could preIer them rather than to accept
the consequences and repercussions that are involved in other options. For Habermas these consequences
are to be accepted as Iar as they can be previewed.
To resume the extrapolation supplants the individual level oI the test oI universalization by that oI
the collectivity. Habermas` practical ethics supplant the monologue oI the Kantian subject by the dialogue
oI the Buberian Iaceted inter-subjectivity. At the same time Habermas` scheme provides Ior the
substitution oI a material and empirically reconstructible and veriIiable test that is genuinely aimed at the
evaluations oI the possible consequences Ior an immaterial, purely mental test oI universalization that is
made by and in individual consciousness.
Given the shiIting oI the Iocal center Irom the Kantian monologue to Habermas` dialogue, Irom
subjectivity to inter-subjectivity, the observation that, in Habermas` project, the principle oI
universalization is necessarily and always associated with the principle oI discussion does not come as a
surprise.
The principle oI discussion is resumed as Iollows:

Only those norms which are accepted or could be accepted by all concerned people and as far as
they are participants in a practical discussion can pretend to be valid.

Another important diIIerence consists oI the Iollowing observation: Kant`s categorical imperative
implicates that the subject has the ability to think his / her behavior as oI potentially universal; he / she or
better his / her consciousness is the instance that decides iI his / her act is rooted in his / her will that it
would become a universal law. It Iollows that Kant`s project that is to establish the morally just nature oI
norms oI action by means oI their universalization does not necessarily implicate that considerations
about the concrete consequences that might result Irom the act`s universalization are involved in the test.
Why? First because such considerations would, iI they were applied, make relative Kant`s absolutely
objectivist conception oI ethics. Second, because considerations about possible consequences can be
reasonably evaluated only with reIerence to a collective environment. Third because moral proposals such
as: 'one ought not to commit murder can be (according to Kant must be) thought as oI universal laws
without any reIerence to the concrete consequences oI the act in question.

Obviously the US position, iI being evaluated with reIerence to the scheme developed by Habermas
and against the Kantian background, causes troubles to the universalization in this that (i) not all
concerned people (UN members) might or could accept the consequences and secondary eIIects oI the
norm`s (military intervention) universal observation; (ii) the US position can be thought as oI a
deliberately taken decision to put an precocious end to the discussion, so that the norm can hardly pretend
to be universally valid.
This was exactly what happened; the consequences and secondary eIIects oI the US position`s
universalization have not been accepted by all UN members, and the option oI a diplomatic and peaceIul
solution, Irom the viewpoint oI the opponents, has not received suIIicient consideration either.

ven iI Habermas remains largely the tributary oI Kant, it is obvious that the test oI universalization
as Habermas understands it, engenders, once it is applied to the US position, a result that is at the opposite
oI the one that Iollows Irom the test oI universalization as Kant has imagined it.
By the way note that the test result that is involved in Habermas` scheme Iits quite well within the
project that is aimed at the Ioundation oI 'the cosmopolitan world state. There is hardly need to say that
such a project can not be considered independently Irom Kant`s major work 'Project Ior a Perpetual
Peace which has inspired President Wilson, leading promoter oI the Society oI Nations in the post War 2
era and which, in many regards and accordingly Habermas, is to be thought as the philosophical
anticipation oI the UNO.
This short and preliminary case study has shown that Kant`s practical philosophy is not at all
irrelevant Ior terrorism issues. Such relevance is eloquently and in the most condensed manner
demonstrated in a concluding critical note:
Could it be that Habermas` universalization is more than Kant`s scheme predisposed towards the
primacy oI the de-ate about concrete action upon concrete action?
One may indeed argue that the requirement Ior the discussion about the consequences and
secondary eIIects oI norms by means oI acts can be contra-productive with regards to both the principle
oI action that is an inherent core principle in politics and with regards to the precept that the moral value
oI human behavior resides in and is to be deIined with reIerence not to the common good, but to justice.
For Habermas as well as Ior Kant the moral value oI an act can never be deIined with reIerence to the
common good.
The Iirst part oI our observation is easily and emphatically resumed in the slogan: Too much talking
and discussing kill action. An analogy between UNO`s Iraq debate and UNO`s actual engagement in the
debate about Iran`s nuclear program is easily drawn.
Here is not the place to discuss the morality oI political action or to raise the question whether and
to which degree morals are eIIectively involved in the politics oI counter-terrorism. Rather we should
keep in mind here that the US position can be thought as an act to which Kant`s test oI universalization
can be successIully applied.
On this account it is legitimate to re-Iormulate our initial question by stressing its critical purpose as
Iollows;
Couldn`t it be that the discussion requirement risks delaying in ultimo the act by which the
universal norm is to be constituted and that the norm, to be a universal law, does not require Ior
discussion (according to Kant)?
In clear this means that Irom the moment on when the US position can be thought as oI a universal
law, the test oI the uuniversalization oI a norm oI action, that has already had a positive result, by means
oI discussion might be considered as useless and artiIicial, the politically negative consequences that are
inherent in an eternal discussion round that precludes reaction being put aside.

As Ior the second part oI my observation the problem that arises is resumed as Iollows: Couldn`t it
be that the discussion about the consequences and secondary eIIects that might result Irom the norm`s
observation remains the tributary oI interests that, because oI their particular nature, are aimed at and
anchored in the achievement oI common good rather than in that oI justice?
The Iollowing observation comes as support: Suppose that the discussants engage in a rational
debate about the consequences that result Irom the observation oI the norm. Consider Iurthermore that
each oI all participants evaluate the eIIects oI the norm`s observation upon the satisIaction oI the interests
oI each oI all. This supposes that everybody, at a Iirst time, evaluates the consequences oI the norm`s
observation upon the satisIaction oI his own interests; otherwise there would be no need Ior constructive
discussion.
And yet a rational discussion is neither a guarantee Ior the constitution oI a universal norm it does
not necessarily culminate into the moral validation oI an act by means oI reason (universal), nor does a
rational discussion presuppose the universal that is called reason - simply because reasoning and mental
structures are issues that can be thought as oI cultural and environmental diversity. In this light the highly
controversial question: why, whether and to which degree the rational evaluation oI the consequences and
eIIects oI the norm`s observation do not vary as a Iunction oI mental structures and cognitive processes
that are diIIerent in nature because they are determined themselves by and vary as a Iunction oI
environmental and cultural diversity? , is seriously to be considered.
On the other hand one might argue this time pro Habermas and contra Kant that the
univerrsalization oI the moral validity oI a norm oI action, as Iar as it is a test, must be (i) collectively
achieved; (ii) empirically re-constructible and documented; (iii) eventually veriIiable or IalsiIiable. The
categorical imperative oI the Kantian subject escapes Irom these requirements.

To outline tha basic problem, let`s open a paranthese:
The question that is at the heart oI this controversy is as Iollowing: can the objective nature and
validity oI a moral just act be deIined with reIerence to considerations that, given their empirical and
practical social nature, can not be considered independently Irom the historical, social economical context
and can not be thought without the context oI the discussion participants either?
For example, consider the highly relevant debate about the equality oI diIIerent sexes and equal
treatment, in law, between men and women. Suppose Iurthermore that the issue is to be tested in a legal
and cultural context wherein human rights do not exist.
The act that consists oI the legalization oI inequality between men and women, oI sexual
discrimination and unequal treatment, can never be thought as one that Iits within the test oI
universalization, as required by Kant`s categorical imperative.
Is it permissible to treat, in law, men and women unequally? Is it permissible to provide Ior legal
discrimination between diIIerent sexes? At Iirst glance, the question can be answered in a positive way.
Why? First because a law-maker who provides Ior legal discrimination might be reasonably presumed to
act in accordance with the maxim that, when taking the decision to provide Ior legal discrimination, he
really might will that it becomes a universal law. Second, because the moral proposal: it is permissible to
provide Ior legal discrimination and unequal treatment between male and Iemale, iI it were universally
applied, at Iirst glance and at the condition that considerations about consequences do play any role,
would meet any serious rejection or engender logical contradiction. With one and this is the important
point exception: Obviously the same observation applies to the opposite case. The law maker who
provides Ior legal prohibition oI sexual discrimination might be supposed to act according to the same
maxim and the moral proposition that is: it is not permissible to provide Ior legal discrimination and
inequality between diIIerent sexes, Ior exactly the same reason, can be thought as oI universally valid.
But this means that the test oI universalization, as it is involved in the categorical imperative must
Iail in each oI both cases - simply because the observation oI each oI both would result in their reciprocal
annihilation.
To resume the test oI universalization must Iail because the supposedly universal observation oI the
moral proposal: it is permissible to provide Ior legal discrimination, is always contradicted by the
supposedly universal observation oI the proposal: it is not permissible. Hence legal discrimination is an
issue that can never be thought as oI a universally valid norm, because it is always susceptible to be
contradicted by the opposite, and inversely. The contingent nature oI the positive law precludes
universality. Another observation comes as support: The legal dimension oI an issue can never be
eloquent about the objective validity oI the 'moral law that is involved in Kant`s categorical imperative.

It Iollows that our initial test-question makes sense only at the condition that the question whether it
is permissible or not is to be considered against the background oI a moral instance or outworker, not with
reIerence to the positive law. Otherwise the question would result in a tautology: From the moment on
when the law provides Ior discrimination, discrimination is permitted and the question iI it is permissible
to provide Ior legal discrimination, has become irrelevant. The same observation applies to the opposite
case.
Another observation comes as support:
oral maxims or precepts such as: all human beings are born as equal people, are equal and Iree
people regardless to sex, Iaith and race presuppose that human beings condition is quite another, through
lack oI legal protection or despite oI it. Otherwise such precepts would make no sense and human rights
would make no sense either.
The observation however banal it may be, that human rights is an issue that reIers to the essence
oI human being and not to the contingence oI ordinary positive law is important in this that it matches the
second condition Ior the question`s test relevance:
The moral instance can be thought only as oI human being`s essence; the moral instance must be
rooted in the essence oI human being.
To be reasonably and successIully subjected to the test oI universalization, the proposal: 'it is
permissible., must be thought against the background oI the essence oI human being. This assumes that
the hypothesis oI the permissibility, to be relevant Ior the test, must be examined against the background
and with reIerence to the essence oI human being.
In this respect the legal discrimination between women and men can never be a universally valid
proposal. Hence legal discrimination and sexual inequality can never be a morally and objectively just
issue, not because its universal observation would contradict the supposedly universal nature oI law, but
because such a legal permission must be thought and can only be thought as oI a moral or super-legal
outworker (human rights) which, iI it were observed universally, would contradict and annihilate its
presupposition (the essence oI human being).
There is hardly need to point the relevance oI our demonstration Ior the whole gamut oI human
rights issues. The demonstration`s relevance Ior our purpose is to be resumed as Iollowing:
(i) the (morally) inadmissible and objectively unjust nature oI legal discrimination and inequality is
demonstrated by the categorical imperative;
(ii) the categorical imperative is highly relevant with regard to the Ioundation oI human rights.
The question which arises then is whether the scheme developed by Habermas, iI it were applied to
the same example, would engender the same result or not. Here is not the place Ior an in-depth study oI
the issue; given its importance, the study oI the issue is worth to be undertaken separately and in a more
appropriate context. Instead oI playing the whole think-game once again, it is more useIul to pick up
some considerations, to develop them and to play them against the background oI Habermas` scheme.
Such a proceeding hopeIully Iavors the engagement in Iurther debates.
Keep in mind that according to Habermas the norm`s universalization depends on the condition that
all concerned people would accept the consequences and secondary eIIects oI the norm`s universal
observation upon the satisIaction oI the interests oI each oI all and could preIer them rather than to accept
the consequences and repercussions that are involved in other options, these consequences being accepted
as Iar as they can be previewed. In our case the norm that is to be accepted is: it is permissible to provide
Ior legal discrimination and sexual inequality.
We have already seen that this norm, to be tested according to Kant`s categorical imperative, must
be considered against the background oI an instance that reIers to and is rooted in the essence oI human
being. And we have seen that such a norm can never become a universally valid law iI the question oI the
permission is evaluated with reIerence to the contingency oI the positive law.
It is clear that the essence oI human being constitutes only one oI the possibilities to conceive an
instance that transcends the contingency oI the positive law. The other possibility consists oI a
transcendental law that is rooted no longer in the nature oI human being, but in a super-natural either
religious or mythological order.
Suppose that among the participants who have to evaluate the consequences oI the norm`s universal
observation are people Ior whom the valid law is rooted in such a transcendental order For these people
the validity oI the legal norm does not depend on the law-making by a power who is in charge with it, but
on the eternal and transcendental order that is necessarily devoid oI any contingency. Suppose
Iurthermore that this particular group is only one oI the two groups that make the consistence oI the whole
participants/ discussants. The other one consists oI the people whose social liIe is governed by the
positive law, but who, at the same time, share the idea that, to prevent the positivist law`s potential
deviance, inequality or injustice, there is need Ior a moral outworker that is rooted in the essence oI
human being (human rights). For the latter the legal permission to discriminate men and women, to treat
gender unequally can never be accepter and it can not be universally observed either because its
acceptance would contradict the essence oI human being or because it`s universal observation would
contradict the inherent rationale oI human rights` validity (i. e. that human rights are relevant Ior all
human being and are thereIore to be observed universally).
The Iormer group might agree with this opinion or might reject it. II they agree, it is likely because
their super-natural legal order does not permit sexual discrimination and inequality. II they reject the
opinion, it is likely that they reject because their super-natural legal order that governs social liIe, does not
only permit such practices, but requires Ior the norm`s absolute obedience.
There is hardly need to tell that the issue is more than a hypothetical think piece, legal orders that
govern, as it is the case in our think-game, the social liIe oI the second group pI the discussion`s
participants, have been Ior a long time relevant to archaic societies and they continue, even in our times
and today more than ever beIore, to be relevant Ior theocratic societies. The observation applies namely to
those theocratic societies oI our times that are governed by the sacred principle oI sexual unequality. For
our game - group as well as Ior its archaic and contemporary realities the acceptance oI the norm: 'legal
discrimination can never be permitted in regards to the essence oI human being (human rights), holds Ior
and constitutes necessary a transgression and given the legal order`s sacred nature, an oIIence against the
holiness oI the law.
Obviously there is no possibility to reach compromise, each oI both can not accept the eIIects oI the
universal observation oI the other`s norm. On this account the discussion can be expected to result in a
zero-round and thereIore it might be considered as useless.
Why then discuss and about what? The Iirst answer consists oI the empirically highly relevant
observation that the issue oI human rights is brought to the Iore oI the debate. It is imaginable indeed that
the group oI those who do not accept the eIIects oI the universally observed prohibition oI legal
discrimination and sexual inequality upon their own legal rationale, would agree with human rights`
universal validity, but at the same time would interpret the prohibition as the product oI a selective and
accordingly unequal interpretation and application oI human rights to human being. AIter all, they might
argue, the notion oI human rights, per deIinition, can never be the privilege oI a particular group that
would apply it in a discriminatory manner to another one oI human beings. Human right`s universal
validity, they might argue, can never result in the rejection oI human being`s diversity and diIIerence.
In Iact this argument is rooted in conIusion and error. There is indeed a Iundamental diIIerence
between the rationale that provides the contingent positivist law with a moral supervisor that is aimed at
the correction oI ethically undesirable or inadmissible consequences oI the law`s application and that is
rooted in the essence oI human being, on the one hand, and the rationale that is inherent in the legal
system which is relevant to society only at the condition that and as Iar as it is rooted in the inherently
commands oI a super-natural, religious or mythical, order. In such a system there is no place Ior
contingent law. Consequently there is no place Ior moral law policing. The law, in such a society, is the
expression oI a reality (order) that supposedly exists independently Irom any mediation. It is not the law
that is contingent here, but human being; contingency is the essence oI human being and law, by
transcending human beings contingency, is somewhat human being contingency`s policing, supervision
and regulation.
It Iollow (i) that the permission / authorization oI legal discrimination and sexual inequality can
never be accepted Irom the viewpoint oI human rights; (ii) the norm that stipulates the permission can
never be thought as a variant oI the opposite norm and never be considered as oI universally valid against
the background oI human beings` essence; (iii) that it is not possible to think the norm; 'legal
discrimination and sexual inequality are not permitted ethically (Irom human rights` viewpoint) as oI
selective or discriminatory human rights interpretation either.
Things are as they are there is no possibility Ior compromise.
So you have the right to ask: Tell us what there is leIt Ior discussion? Obviously it is the reciprocal
respect oI each oI both. It can neither be the norm that provides Ior the permission oI discrimination, nor
can it be the opposite norm. The subject oI discussion, thereIore, must be the question whether the norms
that shall govern this mutual respect, deIine the content and its limits and eventually sanction the
transgression oI these deIined limits are universally valid or not. From now on each oI both groups that
ere engaged in the discussion must evaluate the issue whether (and to which degree) the eIIects oI the
norms that shall govern the mutual respect, iI universally applied, could or could not be accepted by the
members oI the participant groups.
The problem that consists oI the question iI the norm(s) that shall govern the mutual respect oI each
oI both and consequently the acceptance oI each oI both norms (permission oI legal discrimination and
prohibition oI legal discrimination) can pretend to be universally valid has been substituted Ior the
original problem that consisted oI the question iI the norm that permits sexual inequality and
discrimination can pretend to be universally valid.
Such a solution has the advantage to be aimed at the prevention oI open conIlict; ideally it
culminates into a universally valid order oI world peace that involves the mutual respect oI opposite
ethics. Couldn`t it be that this advantage holds, contrary to Kant, Ior the success oI Habermas' ethical
program? Given the circumstance that Kant`s categorical imperative can never be a guarantee Ior peace
and against open conIlict, the issue is worth to be discussed in depth. Fact is that according to the
categorical imperative, the prohibition oI sexual discrimination and inequality can be perIectly considered
as a universally valid precept in this that, to be universally valid it is suIIicient that an individual or
collective subject must will only that it becomes a universal law. This is obviously the case Ior all those
who will the prohibition oI discrimination to become a universal law and who will that in the name oI the
essence oI human being. In which case they must will to accept open conIlict with the subject (individual
or collective) who do not will that this norm becomes a universally valid law, and they must will to
deIend their universally valid law iI necessary with arms. The categorical imperative engenders
categorical, radical consequences.
As Iar as ethical principles such as : 'it can not be permitted to legalize sexual discrimination and
inequality, can hardly be thought as oI universally valid norms in regards to Habermas test oI
univeralization, Habermas ethical project can hardly be considered as a Ioundation oI human rights.
Rather his project would presuppose such ethical principles as well as others and would accept them as
equal issues in this that they are to be considered as equally valid.
Habermas ethics are genuinely normative ethics. It is in the nature oI such a project to establish
universally valid norms and normative limits that are aimed at the regulation oI the mutual respect oI
diIIerent and even opposite ethics, but always equally valid and Iinally contingent ethics. II concrete
ethical principles or systems were not considered as oI contingency, there would be no need to provide Ior
a universally valid norm oI mutual respect. This is ethical pluralism in its purest Iorm and at its highest
development a highly innovative, relevant, but also controversial program.
As we have already seen, Kant's categorical imperative and the ethical program to which it belongs
can be thought as oI a Ioundation oI human rights. Kant`s program, contrary to that oI Habermas, can
hardly be thought as oI ethical pluralism. And it can not be a suspeceted promter oI moral relativism
either. As Iar as the prohibition oI sexual discrimination and similar issues, to be universally valid law,
can never be justiIied with reIerence to the contingency oI the positivist law, but must be evaluated
against the background oI the essence oI human being, the universal validity oI such principles is
necessarily and always limited to the culture oI ethics rooted in and based on the essence oI human being
only. This is a demonstration Ior ethical monism, with all consequences that are involved, and there is
hardly need to tell that the issue is as relevant Ior the actual debate and controversial as is the previous
one, the highly relevant and critical observation that a universal and objective valid norm that depends on
a given cultural context demonstrates contra Kant`s original project the tributary oI the original
signiIier oI ethics that is according to Aristotle a materialist rather than an idealist one being put beside.




Introduction


As Kant, in his 'Doctrine oI Law, has pointed, right comes into existence by virtue oI the transIormation
oI the natural state into the civil one.
This assumes that (i) the existence and reality oI right depends upon the constitution oI a state; (ii)
that right, to be relevant, requires a Iormal rule (law); (iii) that natural rights, in a constitutional state, take
the Iorm oI civil rights.

f men were not disposed to recogni:e any acquisition at all as rightfuleven in a provisional way
prior to entering into the civil state, this state of society would itself be impossible. For the laws
regarding the mine and thine in the state of nature, contain formally the very same thing as they prescribe
in the civil state, when it is viewed merely according to rational conceptions. only that in the forms of the
civil state the conditions are laid down under which the formal prescriptions of the state of nature attain
reali:ation conformable to distributive fustice. Were there, then, not even provisionally, an external meum
and tuum in the state of nature, neither would there be any furidical duties in relation to them, and,
consequently, there would be no obligation to pass out of that state into another.`
A state (civitas) is the union of a number of men under furidical laws. These laws, as such, are to be
regarded as necessary a priorithat is, as following of themselves from the conceptions of external right
generallyand not as merely established by statute. The form of the state is thus involved in the idea of
the state, viewed as it ought to be according to pure principles of right, and this ideal form furnishes the
normal criterion of every real union that constitutes a commonwealth.`
very state contains in itself three powers, the universal united will of the people being thus personified
in a political triad. These are the legislative power, the executive power, and the fudiciary power. 1. The
legislative power of the sovereignty in the state is embodied in the person of the lawgiver, 2. the executive
power is embodied in the person of the ruler who administers the Law, and 3. the fudiciary power,
embodied in the person of the fudge, is the function of assigning every one what is his own, according to
the law (potestas legislatoria, rectoria, et fudiciaria). These three powers may be compared to the three
propositions in a practical syllogism. the mafor as the sumption laying down the universal law of a will,
the minor presenting the command applicable to an action according to the law as the principle of the
subsumption, and the conclusion containing the sentence, or fudgement of right, in the particular case
under consideration.
SCINC OF RIGHT
Second Part, 44-45


Given these observation the circumstance that Kant, in the literature oI legal philosophy, is
generally considered as one oI the most certain deIenders oI legal positivism comes not really as a
surprise. The circumstance that Hans Kelsen`s 'Pure Theory oI Law is largely the tributary oI Kant
comes as a support.
In this Review we have already published several articles that pointed at the ideology oI terrorism
and the embarrassment it causes to politicians, intellectuals and public opinion. InsoIar our journal has
engaged in the ethical debate about terrorism`s moral crime talk.
Among the problems that came rapidly to the Iore oI the debate, the one that consists oI the
axiological and normative (human rights) supporter oI terrorism comes in Iront. The reason is that such a
think-piece is neither compatible with legal positivism, nor does it Iit within the rationale oI modern
democracy.
So as Hobbes` Leviathan precludes, deIinitively, the relevance oI the theory oI tyranticide the
model Ior the right to resist against oppression, so the think-piece oI rights which are anchored in a super-
legality that supposedly exists independently Irom the State`s legal system is completely Ioreign to Kant`s
legal and political philosophy.
In many regards there is a striking resemblance between Kant`s and Hobbes` ethics. For each oI
both philosophers, the right against oppression is rooted in a reIerence that is external to the civil state oI
society and, consequently, there is no place Ior such a think-Iigure in law... It Iollows that the right to
resist against oppression, accordingly to this interpretation scheme, can never be thought as oI the civil
society; it is completely Ioreign to the rule oI law. When such a right comes into existence, civil society
and the reign oI law do no longer exist.
The theoretically and practically highly relevant consequence is that the right Ior resistance against
oppression, as Iar as this issue is to be thought as oI natural right, suIIers Irom a Ilagrant contradiction
that seriously aIIects the legitimacy oI the intellectually highly prominent and supposedly exciting think-
piece which, by postulating the dualistic law conception, points at the coexistence oI natural and positivist
right, grants equivalence to each oI both and assumes that each oI both work and operate according to the
principle oI simultaneity.
On this account our two philosophers are to be considered as pioneers both with regards to the
intellectual position which, by pointing at the logical incoherence oI a law Iigure (natural law) that is
thought as oI an alternative to legal positivism, reacts against this think-piece with skepticism, and with
regards to the engagement in a debate about the normative and the axiological means to provide limits to
a theory which supports the invasion oI positivist law by natural right and Iavors the conIusion oI both
(Gilly 2005)
i|i|

Given the two core-postulates equivalence and simultaneity oI such a theory, it is clear that the
reappraisal oI Kant`s and Hobbes` ethics is an heuristically highly important issue in this that the
reciprocal substitution oI natural law Ior positivist law and the inverse, when being thought against this
philosophical and ethical background, looses much iI not all oI its intellectual coherence.
Considering terrorism`s predisposition towards a legitimization that reIers to a super-legality that is
rooted in natural right and that is supported however controversial, by human rights, the reappraisal oI
Hobbes` and Kant`s ethics, obviously, is highly relevant to the de-construction oI both terrorism`s
ideology and the ideology`s promotion in the public space. As Iar as the right oI resistance against
oppression is thought as oI human rights, human rights is an issue that can no longer be considered being
the certain and powerIul supporter oI political violence and oI terrorism either.

This paper is aimed at the discussion about and at the de-construction oI the rationale that is
inherent in terrorism`s ideology. And this discussion is to be developed against the background oI Kant`s
ethics.
In contemporary terrorism literature and research the reign oI Terror during the French Revolution
is generally interpreted as the key-event in the history oI contemporary terrorism and many authors do not
hesitate to see in the period 1793 -94 the origin oI contemporary terrorism. The theory that provides Ior
the linkage between this speciIic period oI the French Revolution and Iorms oI contemporary terrorism is
the theory oI tyranticide. For argument`s sake this theory constitutes a major element in F. Furet`s works
about the French Terror. It is also the leitmotiI oI Furet`s 'Terrorism and Democracy. W. Laqueur, in
one oI his Iirst and most popular books about terrorism, interprets the reign oI terror against the
background oI the theory oI tyranticide.
Obviously the best way to answer the question what has Kant to do with terrorism is the
investigation oI Kant`s opinion about the theory oI tyranticide in its diIIerent expressions and the French
Revolution.
Kant`s intellectual position towards revolutionary processes demonstrates a higher level oI
contradiction potential than Hobbes` Leviathan in this that Kant`s positive attitude towards the French
Revolution and the ideals promoted by the philosophy oI nlightenment neither precludes the critics oI so
called revolutionary 'legality, nor does it provide Ior an intellectual apologize oI the theory oI
tyranticide as translated, in the environment oI the French Revolution, in terms oI regicide.
In regards to this observation, Kant`s critical interpretation oI the King Louis XVI trial and King
Louis` condemnation to death is worth to receive great attention. The trial and the death condemnation oI
King Louis - however paradoxical it may be, is to be interpreted as oI a reversal within the revolutionary
process that started in 1789. mphatically but truly it can be said that the event, according to Kant, holds
Ior the substitution oI the irrational and terriIic dynamics that are inherent in the revolutionary process Ior
that what, according to Kant`s earlier writings, is to be thought as oI the French revolutions tributary to
the humanism and emancipation as promoted by the philosophy oI nlightenment.
Contra it is always possible to make a mockery oI such interpretation scheme. Indeed one may
argue that Ior Kant the Revolution was already Iinished beIore it really began, the artiIicial think-piece
that consist oI the opposition between the humanist roots oI the Revolution and its terriIic reality being
put aside. Such criticism can be easily attributed to the camp oI critical theory and the whole tradition oI
the historiography oI the French Revolution that is the tributary oI arxism as demonstrated in arx
'German Ideology.
In Iact, the issue is more complicated. The split within the revolutionary process however
artiIicial and critic it may be, is translated, at the level oI Kant`s interpretation, as the process that
supplants the reIormist or legal aspect oI the process that starts in 1789 by illegal and ' really
revolutionary one that started with a crime (the assassination oI Louis XVI) and culminated into terror.
It is thereIore possible to argue that Kant`s celebration oI the French Revolution, in Iact, is the
celebration not oI the revolution that is devoid oI any legality and involves crime and terror, but oI the
legal reIorm oI the French state. Cynically, but truly: Kant`s positive attitude toward the French
Revolution is limited in this that it applies only to 'revolution`s legality`, which is a contradiction.
As reIorm and revolution are terms that precludes each other and as terror is involved in the
revolutionary illegality, Kant`s attitude towards terrorism can be reasonably outlined as Iollows:
Kant has something to do with terrorism in this that his Science oI Law
(i) precludes the possibility to think terrorism as oI legality;
(ii) precludes terrorism as means to reIorm the state and / or to abolish injustice and inequality;
(iii) precludes the legality oI individual violence in an established state and the legality oI all
Iorms oI collective violence that are not inherent oI the states power
(iv) suggests to think terrorism as an issue that is inherently rooted in revolution and thereIore
genuinely collective terrorism as Iar as terrorism is inherently rooted in a collective process
(revolution) or, to tell it in other words, genuinely collective or even governmental (terror);
(v) precludes the possibility to think terrorism`s legitimacy with reIerence to another topic than
that oI legality.

Here is not the place to engage in a debate about the pros and cons regarding Kant`s vision oI the
French Revolution, neither to provide an in depth-study about the historical controversy oI the French
Revolution. Rather it useIul Ior our purpose to acknowledge that the event that is in question here is
somewhat the judicial precursor oI the government oI Terror. According to a Kantian interpretation in
regards to the chronology oI the events,, the judicial terror culminates into the political one In regards to
the nature oI the revolutionary process the event demonstrates the lack oI legality as it is, according to
Kant, genuinely characteristic oI the revolutionary process. On this account, the event is the empirically
highly relevant supporter oI Kant`s critical address oI the legality oI revolution. This does not mean that
Kant would have ignored that, during the French Revolution, several constitutions came into existence.
Rather it means that Ior Kant revolutions are illegal in the double sense oI the word; they are illegal in this
that they are illegal enterprises and they are illegal in this that the revolutionary process, the inherent
dynamics in revolution, holds per deIinition Ior de-regulation or even the lack oI regulation both with
regards to the legality oI the regime that is to overcome and with regards to the process (intrinsic
normativity.
On this account and according to Kant`s think-piece, the revolutionary legality or even the
revolutionary constitutionality is always the consecration, at the level oI law, oI normative de-regulation
or the complete lack oI regulation.




INST REVOLUTIONS` LELITY


Terrorism, as we all know, is oIten associated to revolutionary processes. The revolutionary process, per
deIinition, is aimed at the destruction oI the inherent legality oI the government and Iorm oI state against
which the process is directed. In regards oI the legality that is to be abolished, the revolutionary process
holds always Ior a state oI legal de-regulation.
Among the practical consequences that are involved in the theory that postulates the equivalence
and the simultaneity between the natural and the civil state oI law and society, the most important consists
oI interpreting the revolutionary process as an issue that, per deIinition, can not be thought as oI
(established) legality. The same observation applies to rebellion. It Iollows that revolution and rebellion
somehow escape Irom the established legality oI a given State. InsoIar it is no longer possible to think the
process as oI legality / illegality. As it is unlikely that the State authorizes or encourages revolutionary
movements or rebellions, it Iollows Iurthermore that, accordingly to this theory, the revolutionary process
and the rebellion can not be thought as oI illegality. What is involved in the preclusion oI this hypothesis
is that the lack oI illegality the impossibility to think revolutionary and rebellious activity and behavior
as illegal / criminal is automatically compensated by means oI a super-legality that provides such
behavior with legitimization.
In legal terms this means that the lack oI illegality is compensated by the right to resist against
oppression providing legitimization to revolutionary and rebellious activity and behavior.
Contra Rousseau who in his 'Fragments has provided a brilliant advocacy to the right to resist
against oppression, demonstrating expressis verbis a singular and unique anti-Hobbes and anti-Grotius
criticism, Kant, in the Second Part oI the Science oI Right, points at the illegality oI the right to resist
against oppression.
So as it is not possible to think the right oI resistance as oI legality, there is no need to question the
origin oI the supreme power, and there is no possibility to question the relevance oI already united people
under one common legislative will either.
Obviously the second part oI this proposal is somehow the beginnings oI the Iirst one. In other
words this means that the illegality oI the right oI resistance derives Irom the absolute and empirically
irreversible nature oI the supreme power and the common legislative will. According to Kant

The origin of the supreme power is practically inscrutable by the people who are placed under its
authority. n other words, the subfect need not reason too curiously in regard to its origin in the practical
relation, as if the right of the obedience due to it were to be doubted (fus controversum). For as the
people, in order to be able to abfudicate with a title of right regarding the supreme power in the state,
must be regarded as already united under one common legislative will, it cannot fudge otherwise than as
the present supreme head of the state (summus imperans) wills.`


SCINC OF RIGHT
Second Part, A

It Iollows that there is no possibility Ior an alternative construction oI the supreme power that, iI it
were applied, would, given the irreversible existence oI the supreme power its empirical and practical
evidence, necessarily be rooted in a historicist rationale. And consequently there is no need Ior the
members oI a state to engage in the controversial debate about the nature oI the contract`s origin. Given
the irreversibility oI the civil society and oI the supreme government the whole debate about the origins
oI both has become completely irrelevant practically and ethically. According to Kant such debates are
dangerous in this that they incite people to contest the legitimacy oI the supreme power and expose
themselves as citizen to useless however necessary, punishment and destruction.
For instance when the members oI a civil society engage in a debate about the origins oI the civil
society it is likely that such a debate culminates into the question whether the civil society is the result oI
a preliminary contract oI subjection or whether the power has been constituted by law or the inverse way.
Suppose that people agree with the opinion that the supreme power arose Irom law, that it has been
constituted by means oI an original contract. Obviously such a think-piece puts the civil society as well as
the supreme power on permanent liIe risk. The reason is that the constitution oI the state by means oI an
original contract that is necessarily scheduled by people who are owners oI rights assumes that the
however deIinitively established and existing power oI the civil society is potentially reversible.
This is exactly what Kant is telling us:


The question has been raised as to whether an actual contract of subfection (pactum subfectionis
civilis) originally preceded the civil government as a fact, or whether the power arose first, and the law
only followed afterwards, or may have followed in this order. But such questions, as regards the people
already actually living under the civil law, are either entirely aimless, or even fraught with subtle danger
to the state. For, should the subfect, after having dug down to the ultimate origin of the state, rise in
opposition to the present ruling authority, he would expose himself as a citi:en, according to the law and
with full right, to be punished, destroyed, or outlawed,`

SCINC OF RIGHT
Second Part, A


As Ior the ethical rationale that precludes the debate oI the state`s origin and which is associated
with the normative precept: do not engage in the debate of origin, it is rooted in the holiness and
inviolability oI the law. At a Iirst glance law`s holiness is part oI a think-piece that, to a certain degree, is
the tributary oI transcendental legality that is aimed at the supreme legitimization oI the positivist law.
But this assumes that the supreme and inviolable nature oI the power is not as supreme, absolute and
inviolable as Kant wanted it to be; otherwise there would be no need to reIer to a transcendental legal
support Ior the power oI the state. Hence it Iollows, one may argue, that Kant`s think-piece suIIers Irom
an intrinsic contradiction.
There is a striking resemblance between Hobbes and Kant in this that each oI both think the
absolute nature oI the power and the inviolability oI the law as oI non-human authority as reIerred by the
Bible. Hobbes is reIerring to the Biblical Iigure oI the sea monster Leviathan, whereas Kant is claiming
that all authority comes from Gd`
Given authority`s ultimate and transcendental rationale, Kant`s precept
that it is a crime even to cast doubt upon a law which is so holy and inviolable` comes not as a
surprise.
All the evidence suggests that Kant, by pointing at such a transcendental origin oI the supreme
power and oI legality, demonstrates that he largely remains the tributary oI a theocratic or religious
Ioundation oI law and government which, obviously, contradicts his legal positivism.
And yet, such interpretation however plausible it may be, is as we have already seen, inherent part
oI the Iirst glance view.
Kant`s doctrine provides neither Ior a transcendental theocratic origin oI the positivist law oI the
state, nor is his observation that all authority comers Irom G`d to be interpreted as a demonstration oI a
pre-laic conception oI the law and the state. Kant`s comment comes as a support. The philosopher is
telling us that the maxim that all authority comes Irom G`d
does not express the historical foundation of the civil constitution, but an ideal principle of the practical
reason. t may be otherwise rendered thus. t is a duty to obey the law of the existing legislative power,
be its origin what it may.`
SCINC OF RIGHT
Second Part, A

At the beginning oI this essay we have already noted that, according to Kant, the debate about the
origin oI the civil society and oI the supreme power is useless and dangerous both with regards to its
practical impact and its ethical consequences. Kant`s alert that the maxim does not express the historical
Ioundation oI the civil constitution largely conIirms that Kant, according to our previous observation, by
pointing at the empirical irreversibility and evidence oI the civil constitution, precludes alternative
constructions that are necessarily rooted in a historicist rationale.
There is hardly need to draw an analogy between Kant and Hobbes. Obviously the debate oI the
origin, in Leviathan, does never loose its relevance Ior the Ioundation. InsoIar Kant`s assertion that there
is absolute duty to obey the existing legislative power, whatever its origin may be, is to be thought as oI
much more radically. Nonetheless there is a striking resemblance between both in this that once the civil
constitution has come into existence there is no way to return back and there is no alternative power. The
other important point to be mentioned here is that, in Iact, the duty to obey, Ior each oI both, derives Irom
the Iactual nature oI the civil society and oI the supreme power. As Ior the biblical reIerences they neither
hold Ior transcendental supporters oI the Ioundation, nor are they to be considered as constitutive
elements regarding the authority. They are in Iact devoid oI any practical impact, they are not realities;
rather they are inherent topics in the process that establishes the Iactual nature oI the power by means oI
analogy. As a result the Iactual and positivist nature oI both the supreme power and the constituted civil
society is emphasized at a degree that it culminates into radically secular society.
It Iollows that the State`s supreme power has rights only, not duties. So as the citizens have the duty
to obey the law, the supreme power has the right to establish and to list the duties by means oI law-
making. The State`s supreme power, according to Kant, has even the right to make unjust laws and to
provide unequal distribution oI the political burdens. In this case the subjects may oppose complaint and
objections against injustice and inequality, but not and never active resistance. For argument`s sake Kant
notes:
#esistance on the part of the people to the supreme legislative power of the state is in no case
legitimate, for it is only by submission to the universal legislative will, that a condition of law and order
is possible. Hence there is no right of sedition, and still less of rebellion, belonging to the people.`
SCINC OF RIGHT
Second Part, A

As revolutions are obviously rooted in people`s resistance against the State, the previous comment
is likely to suggest that Kant`s practical ethics preclude revolution. Given that people, in case oI unjust
and unequal government and law making may, accordingly to Kant, oppose complaint and objections, the
observation that Kant, instead oI considering revolutions as legitimate and appropriate means to resolve
injustice, would rather deIined himselI as an adept oI reIorm movement comes as a support
ii|ii|
. In Iact
such an observation however partly correct, is the tributary oI conIusion. Obviously there is a clear
preIerence Ior reIorm. But such a preIerence reIers to and is rooted in the maxim that law and order is
possible only under the condition oI the submission to the universal legislative will. This assumes that
Kant`s doctrine oI law does not preclude the Iactual nature oI revolutions. Rather the inherent rationale
points at the illegality and consequently the illegitimacy oI the right oI resistance and at revolutions`
illegality. The law can never provide legitimization to revolution, but law is susceptible to be reIormed by
means oI the State power`s decision making and reIorm is the only means to correct injustice and
inequality in a way that is respectIul oI the law. So as resistance on the part oI the citizen is illegal,
regicide is, according to Kant, high treason and Ior it holds Ior political parricide to be punished by death.
And least of all, when the supreme power is embodied in an individual monarch, is there any
fustification, under the pretext of his abuse of power, for sei:ing his person or taking away his life
(monarchomachismus sub specie tyrannicidii). The slightest attempt of this kind is high treason (proditio
eminens), and a traitor of this sort who aims at the overthrow of his country may be punished, as a
political parricide, even with death`
SCINC OF RIGHT
Second Part, A
With this clear advocacy Ior the criminal nature oI regicide (tyranticide) the illegality oI resistance
has reached its culminating point. The relevance oI Kant`s comments is to be resumed as Iollows:
(i) So as resistance against the State's power, so as rebellion and revolutions are illegal
activities, terrorism must be thought as oI crime.
(ii) Terrorism`s illegality is neither aIIected by the origin oI the State; nor is it aIIected by the
nature oI the State. It Iollows that, given the radical legal positivism, must Iollow: a) that
terrorism as a means to resist against all Iorms oI government ( including totalitarian state
governments) is an illegal activity; b) that State terror(-ism) is however controversial this
issue may be, namely in regards to contemporary interpretation-schemes, a think-piece that
irrelevant to Kant`s philosophy and legal theory; c) that social and political inequality and
injustice can never provide legitimization to terrorist activities.
(iii) Terrorism is to be considered and to be sanctioned as treason. So as the slightest attempt Ior
seizing the monarch`s person or Ior taking his liIe requires very hard punishment, so the
slightest terrorist activity, even the slightest plan or project requires the hardest sanctions.
(iv) As it is the duty of the people to bear any abuse of the supreme power, even then though it
should be considered to be unbearable`, it is the duty oI the people to make a contribution to
the Iight against terrorism. And such a contribution is to be perIormed even iI the State who
is engaged in this Iight is one which constantly abuses its power or iI it provides Ior abusive
counter Iight measures.

Suppose that resistance against the sovereign power culminates into the substitution oI a new power
Ior the old. This assumes that the originally and genuinely illegal nature oI resistance against the supreme
power is somewhat the subject oI the process by which the resistance is institutionalized, which is a
contradiction. Once it is institutionalized there a new power has come into existence.
Acknowledge Iurthermore that terror (ism) is however controversial this may be, currently
constructed as the means to achieve resistance. So as the institutionalization oI genuinely illegal
resistance might culminate into a newly established power, terrorist activities might engender the
constitution oI a new sovereign power.
At Iirst glance the institutionalization oI a genuinely illegal activity can never aIIect the nature oI
this activity. It Iollows that the maxim: resistance is illegal applies also to the new sovereign power. The
process oI institutionalization does not aIIect the genuinely illegal nature oI resistance, but it supplants the
original reIerence ( old sovereign) by means oI which resistance has been and is to be deIined as illegal
by that oI a new ( new sovereign) by means oI which resistance is to be deIined, here again, as illegal
activity. It is not the newly established sovereign who is criminal / illegal, although it is a derivation oI
illegal resistance, but it is the resistance against the new power that is illegal and criminal.
This assumes that there is no possibility to resist legally against the new established sovereign in
the name oI its illegal origin. This is exactly Kant`s viewpoint and there is hardly need to point the
tributary to Kant`s legal positivism.
Further, when on the success of a revolution a new constitution has been founded, the unlawfulness
of its beginning and of its institution cannot release the subfects from the obligation of adapting
themselves, as good citi:ens, to the new order of things, and they are not entitled to refuse honourably to
obey the authority that has thus attained the power in the state.`
SCINC OF RIGHT
Second Part, A

This comment`s relevance Ior terrorism is to be added to our list:
(v) The circumstance that terrorist activities are at the origin oI sovereign power does not aIIect
the citizen`s obligation to obey to the rules oI such a sovereign power; it can not aIIect this
sovereign`s right to Iight against terrorism either. Resistance against this power in the name
oI its terrorist origin is criminal.
Suppose that the previous observation is understood as a maxim that is aimed to provide a guideline
Ior politics and politically relevant action. Its relevance and actuality is easily demonstrated. The
circumstance that the actual Palestinian sovereign power (Hamas) has been and / or continues to be
involved in terrorist activities can never legitimize disobedience oI the Palestine people and resistance
against it: and it can not be a pretext Ior its de-legitimization either. Resistance and de-legitimization oI
the constituted power, either by the citizen or by Ioreign states, is always illegal according to this inherent
maxim in Kant`s Science oI Law., all the more so as the sovereign(s power has been constituted by means
oI election.
A radical and oI course highly controversial consequence; and yet the consequent application oI
this maxim to the Palestinian actuality requires Ior it Analogically the application oI the same maxim to
the post-Thermidorian governmental terror during the French Revolution implicates however
controversial this may be, that resistance against it and de-legitimization oI the Terror regime can never
be thought as oI legality. By virtue oI which the inherent concept in 'progressive and arxist French
Revolution`s history. the concept oI 'reactionary terror, becomes highly problematic.
We might deplore such a radical consequence and revolt against it but, there is no other solution,
except one.
It consists oI the application oI the categorical imperative to international politics and diplomatic
relations, not to the legally constituted power. It consists oI testing the universalization oI a political
strategy that is likely to consider Hamas as a politically correct partner Ior democratic states.
The question: is it permissible to deal with a democratically elected partner who is not willing to
recognize the existence oI the only democracy in the iddle ast area which is at the same time one oI
the world`s Ilagships oI democracy?
Obviously the answer is negative. II such permission were universalized, democracies` aim would be
the destruction oI itselI.
Here is not the place to engage in a debate about the question whether it is preIerable to support the
moral philosopher Kant against the writer oI the Science oI Law or not. Rather is it the place to
acknowledge that it is possible to argue with Kant (ethical solution) against himselI (legal solution). The
circumstance that the great democrat and Statesman Sir Winston Churchill, contrary to Chamberlain and
the rest oI the civilized world, was right with his vision oI Germany is an issue that is to be seriously
considered by those who are directly involved in such preIerential choices.
The Iirst main part oI this essay concludes with this critical note.

INT REICIDE. TERROR: PERVERTED LELITY

None oI the observations we have quoted in the Iirst part oI this essay provides, in an eloquent
manner, Ior the deIinition oI terror and terrorism. As Ior the relevance oI Kant`s practical philosophy and
oI Kant`s Science oI law, none oI the arguments developed in the Iirst part oI this essay in Iavor oI this
thesis is directly rooted in and supported by the passages we have quoted. Rather we demonstrate the
relevance by reIerring to the topic oI revolutions` and resistance`s illegality and by means oI the topic`s
contextualization.
As we will see in this part Kant does not provide Ior a current deIinition oI terror (-ism). Instead oI
pointing terror as a means oI government or as a means Ior political goal achievement, Kant proposes a
cognitive or psychological deIinition oI terror ((ism) that Iocuses on the collective experience oI the
emotional reaction against a historical event that, accordingly Kant demonstrates the complete perversion
oI law and the spirit oI law.
This event is the trial and death condemnation oI Louis XVI.
Hence neither resistance against the sovereign power is as such inherently terriIic or terrorist; nor is
it possible to consider regicide as inherently terriIic or as oI terror. Rather it is illegality`s legal
transIiguration that holds Ior terror. Terror comes into existence as the result oI the process that, by
legally veiling crime (resistance and regicide), operates the perversion oI law.
Kant comments the issue as Iollows:
Of all the abominations in the overthrow of a state by revolution, even the murder or assassination of
the monarch is not the worst. For that may be done by the people out of fear, lest, if he is allowed to live,
he may again acquire power and inflict punishment upon them, and so it may be done, not as an act of
punitive fustice, but merely from regard to self-preservation. t is the formal execution of a monarch that
horrifies a soul filled with ideas of human right, and this feeling occurs again and again as of as the mind
reali:es the scenes that terminated the fate of Charles or Louis XJ.`
SCINC OF RIGHT
Second Part, A

The problem that is raised then is resumed with the question: What has the Iormal execution to do
with the perversion oI justice and why is it so terriIying?
To explain the issue Kant, at a Iirst time, points at the nature oI such a collective Ieeling oI terror.
He clearly rejects the idea that such a Ieeling is rooted in aesthetic considerations or that it is produced by
Iancying ourselves in the place oI the suIIer. He addresses the moral nature oI this Ieeling. And the
nature oI the Ieeling oI terror and horror is moral in this that, explains Kant, it arises Irom the entire
subversion oI all our notions oI rights. Why? Because
#egicide, in short, is regarded as a crime which always remains such and can never be expiated
(crimen immortale, inexpiabile), and it appears to resemble that sin which the theologians declare can
neither be forgiven in this world nor in the next.`
SCINC OF RIGHT
Second Part, A

At Iirst glance Kant`s explanation contradicts our previous observation that regicide, as such, is not
inherently terriIic. And yet one thing is to address the moral nature and the moral roots oI horror, another
to explain the Ieeling itselI. Hence the circumstance that the moral nature oI our Ieeling consists oI the
subversion oI all our notions oI right that is involved in a crime that can never be expiated can hardly be
considered as an eloquent inIormation about the reasons oI the Ieeling itselI.
This is why Kant Ieels obliged to develop another argument. Its premice consists oI the observation
that every transgression is to be explained with reIerence to the transgressor`s Iree will by which he
makes the transgression his/her crime oI action. Two diIIerent cases are to be distinguished:
First, the transgressor/criminal commits his act according to the maxim oI a rule that is supposed to
be valid objectively and universally. In this case the oIIender completely rejects the authority oI the law
itselI. The transgressor`s maxim is not deIective as being negatively contrary to the law; rather it is
positively illegal in this that it is diametrically contrary and in hostile opposition to the law. To support
this argumentation Kant points the circumstance that the transgressor who rejects the authority oI the law
is always conIronted with the dilemma that consists in making his / her rule to act against the law, the
validity oI which he can never repudiate.
Second, the transgressor`s maxim is deIective as being positively contrary to the maw. This
assumes that the transgressor, instead oI rejecting the authority oI the law itselI, acts and commits his/her
crime respectIully to it. It Iollows that he/she acts in accordance to the principle that the transgression is
an exception Irom the rule
Here is the place to open parentheses, which content is relevant to criminological discourse rather
than directly Ior our purpose:
II we compare the two Iigures and consider them against the background oI criminological
discourse and paradigm, an analogy between the transgressions that is respectIul to the law`s authority
and committed as an exception Iorm the rule and the notion oI deviance. The Iormer can be thought as oI
the latter in this that deviant behavior does never involve the categorical rejection oI the norm with
reIerence to which it deviates. Hence it is always to be considered as an exception regarding the respect oI
the laws` authority. There is hardly need to tell that the positively illegal transgression is easily associated
to the notion oI crime in this and as Iar as the notion oI crime is associated to the quality oI a
transgression (seriousness) that, by provoking a however diversiIied and diIIerentiated, universal
repudiation, demonstrates crime`s eIIective roots in the maxim that consists to think law-breaking as an
objectively and universally valid rule.
It Iollows that with Iew exceptions the majority oI legally deIined oIIenses are according to this
analogical reasoning to be considered as deviance, not as crime. In turn, organized crime can be hardly
thought as oI deviance. The reason is that organized crime, by using legal settings as means Ior crime
achievement, must be thought as oI legality`s abuse or even complete perversion, demonstrating the
complete rejection oI the authority oI law itselI. Kant provides Ior support:
n the latter case (transgression according to the maxim to make it an exception Irom the rule - TG), he
only diverges from the law, although intentionally. He may, at the same time, abhor his own
transgression, and without formally renouncing his obedience to the law only wish to avoid it`.
SCINC OF RIGHT
Second Part, A

Obviously this comment applies easily to the majority oI oIIenses as deIined in our criminal codes;
it is hardly valid Ior organized crime. With this observation our parentheses is closed. To explain the
Ieeling oI terror and monstrosity that is collectively experienced in Iace oI an assassination that that is not
intrinsically terrible, Kant points at the contradiction that is involved in the Iormal execution oI a monarch
as demonstrated by the execution oI Louis XVI. By virtue oI the Iormal execution, i.e. the execution that
is respectIul oI the Iormal legal rules, namely the criminal process, an assassination, according to Kant,
must be considered as only an exception Irom the rule. On the other hand it should be regarded as the
complete perversion oI the legal principles that are aimed at the regulation oI the relation between the
sovereign and the people:
There is thus a feeling of horror at the thought of the formal execution of a monarch by his people. And
the reason it is that, whereas an act of assassination must be considered as only an exception from the
rule which has been constituted a maxim, such an execution must be regarded as a complete perversion
of the principles that should regulate the relation between a sovereign and his people. For it makes the
people, who owe their constitutional existence to the legislation that issued from the sovereign, to be the
ruler over him. Hence mere violence is thus elevated with bold brow, and as it were by principle, above
the holiest right, and, appearing like an abyss to swallow up everything without recall, it seems like
suicide committed by the state upon itself and a crime that is capable of no atonement.`
SCINC OF RIGHT
Second Part, A

ThereIore it is the perversion oI law by means oI the respect oI the Iormal legal rules that is aimed
to serve and support an illegal act that provokes the terror and the sensation oI monstrosity.
What`s about this illegal act? It is neither the trial; nor it is the accusation oI Louis itselI that is
illegal. Rather it is the King`s accusation and condemnation on the ground oI the supposedly criminal
nature oI his Iormer administration and sovereignty exercise that is illegal.
and least of all can the slightest right be shown for punishing the sovereign on the ground of previous
maladministration. For all that has been already done in the quality of a sovereign must be regarded as
done outwardly by right, and, considered as the source of the laws, the sovereign himself can do no
wrong.`
SCINC OF RIGHT
Second Part, A
How to conceive the King`s accusation and his condemnation as oI legality? Here again Kants
science oI Law provides Ior an eloquent answer:
It would have been legal to accuse and condemn him as a simple citizen who, by associating
himselI to the Ioreign nations and by Iavoring the belligerent reaction against the French Republic, would
have demonstrate deliberately his will either to put the newly established sovereign on liIe risk or prepare
his come back and his vengeance:
he may again acquire power and inflict punishment upon them, and so it may be done, not as an act of
punitive fustice, but merely from regard to self-preservation.`
SCINC OF RIGHT
Second Part, A

This perversion is, within the context oI the French revolution, deIinitively accomplished with the
trial and the condemnation oI the King. And it is this particular meaning that is to be considered as the
rationale oI the split within the revolutionary process that is characteristic oI Kant`s interpretation scheme
oI the French Revolution.
Hence there is no revolution beIore the event that holds Ior the perversion is realized. And there is no
terror either. The event announces the end oI that what, according to Kant, is to be considered as a series
oI reIorms.
This essay does not provide Ior a conclusion; rather it opens the door Ior Iurther discussion.
Resistance is genuinely and intrinsically illegal. The same observation applies to regicide. None oI
both issues are intrinsically terriIic or monstrous. What is terriIic is the complete perversion oI law by
means oI a Iormal legal support that is aimed to serve and support an illegal act.
II it is not resistance as such that holds Ior the perversion, it must be the Iormal legal title the right
to resist that operates the perversion.
Obviously the think-piece does not Iit within the modern political-philosophical tradition that goes
back to Rousseau; it is not compatible with the general perception oI the right oI resistance by our
contemporary societies. Nobody, in our times, is likely to associate the right oI resistance with the
perversion oI right, all the more so as the right oI resistance is currently thought as oI human rights.
And yet the circumstance that the right oI resistance has been Ior a long time and continues to be
terrorism`s most powerIul supporter should all oI us incite to engage in a debate about the question
whether, to which degree and Irom which moment on the however desirable and necessary topic oI
human rights is likely to become counter-productive both with regards to the stability oI democratic states
and with regards to the human being to which reIers the notion oI human rights and by virtue oI which
human being is granted with inalienable rights.
When innocent people are killed in a terrorist attack and iI however controversial and critical,
such attack is either realized on the ground oI the right oI resistance against oppression or perceived and
interpreted as its derivation or its culminating point, isn`t it then not an intellectual and a moral obligation
human rights potential oI selI-perversion? The right to Iight against oppression and Ior the human right
and liberty perverts human rights when its exercise holds Ior both the violation and the complete
annihilation oI the basic human right oI liIe through lack oI which the other one, the right Ior liberty, is
inconceivable, empirically and ethically, simply because Iree people are basically people ( empirical
argument) and because the contraire argument that consists oI the idea that the human right Ior liIe is
conceivable under the condition only that liIe is Iree liIe culminates into an ethical monstrosity Free
people only shall have the right to live? Are not Iree people not human beings?
II we consider this observation against the background oI Kant`s distinction between a
transgression that is committed according to the maxim to make the act oI the transgression a universally
and objectively valid rule, on the one hand, the one that is committed according to the maxim to think the
act only as an exception Irom the rule, then it becomes possible to think the selI perversion oI human
rights, as it is involved in terrorism as the complete rejection oI the authority oI human rights.




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i|i|
In 'At the Crossroad Among Crime, Norms and Values ( RCS ONLIN QUARTRLY Vol 2 Number 3), I
have already pointed at the relevance oI this issue Ior the critical human rights debate:
'The ambiguity oI this construction consists oI its natural predisposition towards the conIusion between each oI
both orders. That what is involved here is the substitution oI a natural or pre-legal conception oI right and justice Ior
a legal conception and vice versa, oI a natural state oI society Ior a civil state oI society and vice versa. The most
important practical consequence is that human rights provide processes oI national liberation and auto-determination
that involve violence as a practical means oI elementary rights oI human beings (conservation and preservation)
with moral legitimization. At the same time human rights support the invasion oI democracy and peaceIul conIlict
solution by those archaic Iorms oI violence that are inherent in the natural right oI conservation and preservation.
'And yet the moralization oI a pre- democratic and pre-legal state wherein violence is the natural expression oI
archaic rights, on the one hand, and the process that consists oI the transIer oI topics Irom 'status naturalis to
modern democracy, on the other hand is an highly contradictory

ii|ii|
'An alteration oI the still deIective constitution oI the state may sometimes be quite necessary. But all such
changes ought only to proceed Irom the sovereign power in the way oI reIorm, and are not to be brought about by
the people in the way oI revolution; and when they take place, they should only eIIect the executive, and not the
legislative, power.