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If I look at public right from the point of view of most professors of law, and abstract from its matter or its empirical elements, varying according to the circumstances given in our experience of individuals in a state or of states among themselves, then there remains the form of publicity. The possibility of this publicity, every legal title implies. For without it there could be no justice, which can only be thought as before the eyes of men; and, without justice, there would be no right, for, from justice only, right can come.

This characteristic of publicity must belong to every legal title. Hence, as, in any particular case that occurs, there is no difficulty in deciding whether this essential attribute is present or not, (whether, that is, it is reconcilable with the principles of the agent or not), it furnishes an easily applied criterion[p. 185] which is to be found a priori in the reason, so that in the particular case we can at once recognise the falsity or illegality of a proposed claim (praetensio juris), as it were by an experiment of pure reason.

Having thus, as it were, abstracted from all the empirical elements contained in the concept of a political and international law, such as, for instance, the evil tendency in human nature which makes compulsion necessary, we may give the following proposition as the transcendental formula of public right:---"All actions relating to the rights of other men are wrong, if the maxims from which they follow are inconsistent with publicity."

This principle must be regarded not merely as ethical, as belonging to the doctrine of virtue, but also as juridical, referring to the rights of men. For there is something wrong in a maxim of conduct which I cannot divulge without at once defeating my purpose, a maxim which must therefore be kept secret, if it is to succeed, and which I could not publicly acknowledge without infallibly stirring up the opposition of everyone. This necessary and universal resistance with which everyone meets me, a resistance therefore evident a priori, can be due to no other cause than the injustice with which such a maxim threatens everyone. Further, this testing principle is merely negative; that is, it serves only as a means by which we may know[p. 186] when an action is unjust to others. Like axioms, it has a certainty incapable of demonstration; it is besides easy of application as appears from the following examples of public right.

1.---Constitutional Law. Let us take in the first place the public law of the state (jus civitatis), particularly in its application to matters within the state. Here a question arises which many think difficult to answer, but which the transcendental principle of publicity solves quite readily:---"Is revolution a legitimate means for a people to adopt, for the purpose of throwing off the oppressive yoke of a so-called tyrant (non titulo, sed exercitio talis)?" The rights of a nation are violated in a government of this kind, and no wrong is done to the tyrant in dethroning him. Of this there is no doubt. None the less, it is in the highest degree wrong of the subjects to prosecute their rights in this way; and they would be just as little justified in complaining, if they happened to be defeated in their attempt and had to endure the severest punishment in consequence.

A great many reasons for and against both sides of this question may be given, if we seek to settle it by a dogmatic deduction of the principles of right. But the transcendental principle of the publicity of public right can spare itself this diffuse argumentation. For, according to that principle, the[p. 187] people would ask themselves, before the civil contract was made, whether they could venture to publish maxims, proposing insurrection when a favourable opportunity should present itself. It is quite clear that if, when a constitution is established, it were made a condition that force may be exercised against the sovereign under certain circumstances, the people would be obliged to claim a lawful authority higher than his. But in that case, the so-called sovereign would be no longer sovereign: or, if both powers, that of the sovereign and that of the people, were made a condition of the constitution of the state, then its establishment (which was the aim of the people) would be impossible. The wrongfulness of revolution is quite obvious from the fact that openly to acknowledge maxims which justify this step would make attainment of the end at which they aim impossible. We are obliged to keep them secret. But this secrecy would not be necessary on the part of the head of the state. He may say quite plainly that the ringleaders of every rebellion will be punished by death, even although they may hold that it was he who first transgressed the fundamental law. For, if a ruler is conscious of possessing irresistible sovereign power (and this must be assumed in every civil constitution, because a sovereign who has not power to protect any individual member[p. 188] of the nation against his neighbour has also not the right to exercise authority over him), then he need have no fear that making known the maxims which guide him will cause the defeat of his plans. And it is quite consistent with this view to hold that, if the people are successful in their insurrection, the sovereign must return to the rank of a subject, and refrain from inciting rebellion with a view to regaining his lost sovereignty. At the same time he need have no fear of being called to account for his former administration.[153]

[p. 189]

2.---International Law. There can be no question of an international law, except on the assumption of some kind of a law-governed state of things, the external condition under which any right can belong to man. For the very idea of international law, as public right, implies the publication of a universal will determining the rights and property of each individual nation; and this status juridicus must spring out of a contract of some sort which may not, like the contract to which the state owes its origin, be founded upon compulsory laws, but may be, at the most, the agreement of a permanent free association such as the federation of the different states, to which we have alluded above. For, without the control of law to some extent, to serve as an active bond of union among different merely natural or moral individuals,---that is to say, in a state of nature,---there can only be private law. And here we find a disagreement between morals, regarded as the science of right, and politics. The criterion, obtained by observing the effect of publicity on maxims, is just as easily applied, but only when we understand that this agreement binds the contracting states solely with the object that peace may be preserved among them, and between them and other states; in no sense with a view to the acquisition of new territory or power. The following instances of antinomy occur between[p. 190] politics and morals, which are given here with the solution in each case.

a. "When either of these states has promised something to another, (as, for instance, assistance, or a relinquishment of certain territory, or subsidies and such like), the question may arise whether, in a case where the safety of the state thus bound depends on its evading the fulfilment of this promise, it can do so by maintaining a right to be regarded as a double person:---firstly, as sovereign and accountable to no one in the state of which that sovereign power is head; and, secondly, merely as the highest official in the service of that state, who is obliged to answer to the state for every action. And the result of this is that the state is acquitted in its second capacity of any obligation to which it has committed itself in the first." But, if a nation or its sovereign proclaimed these maxims, the natural consequence would be that every other would flee from it, or unite with other states to oppose such pretensions. And this is a proof that politics, with all its cunning, defeats its own ends, if the test of making principles of action public, which we have indicated, be applied. Hence the maxim we have quoted must be wrong.