What has Kant to do with terrorism?

By Thomas Albert Gilly

Abstract: This essay addresses the relevance of Kants moral philosophy and of Kants Science of Law for issues that are central to the actual debate about terrorism. The relevance of Kants moral philostphy is demonstrated against the background of the categorical imperative, the relevance of the Science of Law is discussed with special regards to both the concepts of tyranticyde/regicide and the topic of revolutions legality. The project that consists of the establishment of an objectively and universally valid ethical norm that has its roots in reason comes to the fore of the first part of the debate. The impact of the test of universalization upon issues that are central to the terrorism debate varies as a function of the difference between the original project (Kant) and the projects development by Habermas. The relevance of Kants critical comments about the legality of revolution and resistance for the deconstruction of terrorisms ideology and ethics is the issue that is central to the second part of the essays discussion.

Prologue: The US military intervention in Iraq came rapidly to the fore of the public debate. The issue has been the subject of 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 first formulation of 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 furthermore that the same precept has been shared by all members of the UN during the deliberation about the pros and cons of a military intervention in Iraq. Keep in mind that the military intervention in Iraq, from 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 fight against terrorism. The categorical imperative addresses a moral obligation to each individual, and it requires for individual deliberation. Suppose that each of the UN representatives, when deliberating about the intervention, was applying the precept to him/herself. During the deliberations nobody could reasonably cast doubt on the empirical evidence of the allegations addressed by the US and the UK governments; there was little doubt about Iraqs arsenal of chemical weapons, Iraqs involvement in terrorism could hardly be questioned and Iraqs use of chemical weapons against civil population and Iraqs permanent violation of human rights all these issues were more or less beyond doubt.

To be relevant for demonstration our think-piece can not miss these considerations. It follows that we have to share the idea that the ground of the accusation was beyond doubt during the application period of the categorical imperative. Here is not the place to engage in a debate about the real motivations of those nations that were categorically opposed to a military intervention in Iraq; nor can it be our aim to question the legitimacy of the officially developed arguments against it. For our purpose, it is sufficient to suppose that the camp of the cons simply demonstrated their preference for a political and diplomatic solution of the affaire. Let us now discuss the question whether the US position and its concrete outcome, under such conditions and given these circumstances, can be justified with reference to the first formulation of the categorical imperative. Obviously the answer is depending on the test of the positions universalization. At first glance the test is negative; if 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 of the state representatives would have been able to follow the categorical imperative or would have applied it correctly. As it could be that even the US representative failed in applying it (correctly), it could be that the opponents failed too. Another observation comes as support: As the categorical imperative is an imperative that is to be observed by each individual only, the test of universalization is to be scheduled by each individual. It follows that the question whether an act is morally just or unjust can never be answered with reference to a majority of people who think the act as of morally unjust, simply because collective behavior, even if it is shared by the majority of people, can never be an indicator of the maxims effectiveness. After all it could be that the opponents opinion, even if majority, is rooted in the maxim to act and behave according to particular interests. In fact, the US position is perfectly in accordance with the imperative. To better understand that the US position is perfectly 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 following questions are to be considered: Is it permissible to refrain from reacting against a non democratic totalitarian state that is not willing to accept the internationally scheduled control of 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! If this were permissible, the moral proposition that is involved and that follows: 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 holders intention to use them at a given moment. Given the catastrophic consequences of such a screen play, it follows that the moral proposition: it is permissible makes no longer sense; it annihilates itself from a logical viewpoint because it presupposes moral decision making and the existence and the continuity of an institutional or individual decision maker, which, in the worst of the cases, does no longer exist To turn it in another way the US position is to be considered as perfectly in accordance with the categorical imperative because the universalization of the moral proposition that is in question here, if applied, puts the subjects and/or institutions that are concerned at existential life risk, the observation that the detention and production of ABC weapons is legally prohibited being put aside. The same observation applies to the initial question: is it permissible to refrain from reaction against? in this that the lack of reaction logically implies that the existential conditions of the subject who is engaged in the debate about the moral question (the questioner) is put at life risk An analogy between this moral proposition and the other one that is involved in the question: is lack of reaction against states that are obviously engaged in terrorism activities, either directly or indirectly, and that violate constantly human rights permissible? If it were the moral proposition that follows would be: Terrorism is a universally valid law. Obviously the proposal annihilates itself. The

moral proposal: terrorism is permitted and holds for 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 of universalization with reference to a scheme that, at first glance, shows little difference. It is the scheme developed by Jrgen Habermas with reference to and against the background of Kants categorical imperative. Habermas extrapolation of the categorical imperative culminates into the focal centers shift from the subject to inter-subjectivity. This assumes that the principle of the norms 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 effects of the norms universal observation upon the satisfaction of the interests of each of all and could prefer them rather than to accept the consequences and repercussions that are involved in other options. For Habermas these consequences are to be accepted as far as they can be previewed. To resume the extrapolation supplants the individual level of the test of universalization by that of the collectivity. Habermas practical ethics supplant the monologue of the Kantian subject by the dialogue of the Buberian faceted inter-subjectivity. At the same time Habermas scheme provides for the substitution of a material and empirically reconstructible and verifiable test that is genuinely aimed at the evaluations of the possible consequences for an immaterial, purely mental test of universalization that is made by and in individual consciousness. Given the shifting of the focal center from the Kantian monologue to Habermas dialogue, from subjectivity to inter-subjectivity, the observation that, in Habermas project, the principle of universalization is necessarily and always associated with the principle of discussion does not come as a surprise. The principle of discussion is resumed as follows: 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 difference consists of the following observation: Kants categorical imperative implicates that the subject has the ability to think his / her behavior as of potentially universal; he / she or better his / her consciousness is the instance that decides if his / her act is rooted in his / her will that it would become a universal law. It follows that Kants project that is to establish the morally just nature of norms of action by means of their universalization does not necessarily implicate that considerations about the concrete consequences that might result from the acts universalization are involved in the test. Why? First because such considerations would, if they were applied, make relative Kants absolutely objectivist conception of ethics. Second, because considerations about possible consequences can be reasonably evaluated only with reference 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 of universal laws without any reference to the concrete consequences of the act in question. Obviously the US position, if being evaluated with reference 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 effects of the norms (military intervention) universal observation; (ii) the US position can be thought as of 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 effects of the US positions universalization have not been accepted by all UN members, and the option of a diplomatic and peaceful solution, from the viewpoint of the opponents, has not received sufficient consideration either.

Even if Habermas remains largely the tributary of Kant, it is obvious that the test of universalization as Habermas understands it, engenders, once it is applied to the US position, a result that is at the opposite of the one that follows from the test of universalization as Kant has imagined it. By the way note that the test result that is involved in Habermas scheme fits quite well within the project that is aimed at the foundation of the cosmopolitan world state. There is hardly need to say that such a project can not be considered independently from Kants major work Project for a Perpetual Peace which has inspired President Wilson, leading promoter of the Society of Nations in the post War 2 era and which, in many regards and accordingly Habermas, is to be thought as the philosophical anticipation of the UNO. This short and preliminary case study has shown that Kants practical philosophy is not at all irrelevant for 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 Kants scheme predisposed towards the primacy of the debate about concrete action upon concrete action? One may indeed argue that the requirement for the discussion about the consequences and secondary effects of norms by means of acts can be contra-productive with regards to both the principle of action that is an inherent core principle in politics and with regards to the precept that the moral value of human behavior resides in and is to be defined with reference not to the common good, but to justice. For Habermas as well as for Kant the moral value of an act can never be defined with reference to the common good. The first part of our observation is easily and emphatically resumed in the slogan: Too much talking and discussing kill action. An analogy between UNOs Iraq debate and UNOs actual engagement in the debate about Irans nuclear program is easily drawn. Here is not the place to discuss the morality of political action or to raise the question whether and to which degree morals are effectively involved in the politics of counter-terrorism. Rather we should keep in mind here that the US position can be thought as an act to which Kants test of universalization can be successfully applied. On this account it is legitimate to re-formulate our initial question by stressing its critical purpose as follows; Couldnt 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 for discussion (according to Kant)? In clear this means that from the moment on when the US position can be thought as of a universal law, the test of the uuniversalization of a norm of action, that has already had a positive result, by means of discussion might be considered as useless and artificial, the politically negative consequences that are inherent in an eternal discussion round that precludes reaction being put aside. As for the second part of my observation the problem that arises is resumed as follows: Couldnt it be that the discussion about the consequences and secondary effects that might result from the norms observation remains the tributary of interests that, because of their particular nature, are aimed at and anchored in the achievement of common good rather than in that of justice? The following observation comes as support: Suppose that the discussants engage in a rational debate about the consequences that result from the observation of the norm. Consider furthermore that each of all participants evaluate the effects of the norms observation upon the satisfaction of the interests of each of all. This supposes that everybody, at a first time, evaluates the consequences of the norms observation upon the satisfaction of his own interests; otherwise there would be no need for constructive discussion. And yet a rational discussion is neither a guarantee for the constitution of a universal norm it does not necessarily culminate into the moral validation of an act by means of 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 of cultural and environmental diversity. In this light the highly

controversial question: why, whether and to which degree the rational evaluation of the consequences and effects of the norms observation do not vary as a function of mental structures and cognitive processes that are different in nature because they are determined themselves by and vary as a function of 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 of the moral validity of a norm of action, as far as it is a test, must be (i) collectively achieved; (ii) empirically re-constructible and documented; (iii) eventually verifiable or falsifiable. The categorical imperative of the Kantian subject escapes from these requirements. To outline tha basic problem, lets open a paranthese: The question that is at the heart of this controversy is as following: can the objective nature and validity of a moral just act be defined with reference to considerations that, given their empirical and practical social nature, can not be considered independently from the historical, social economical context and can not be thought without the context of the discussion participants either? For example, consider the highly relevant debate about the equality of different sexes and equal treatment, in law, between men and women. Suppose furthermore that the issue is to be tested in a legal and cultural context wherein human rights do not exist. The act that consists of the legalization of inequality between men and women, of sexual discrimination and unequal treatment, can never be thought as one that fits within the test of universalization, as required by Kants categorical imperative. Is it permissible to treat, in law, men and women unequally? Is it permissible to provide for legal discrimination between different sexes? At first glance, the question can be answered in a positive way. Why? First because a law-maker who provides for legal discrimination might be reasonably presumed to act in accordance with the maxim that, when taking the decision to provide for legal discrimination, he really might will that it becomes a universal law. Second, because the moral proposal: it is permissible to provide for legal discrimination and unequal treatment between male and female, if it were universally applied, at first 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 for legal prohibition of sexual discrimination might be supposed to act according to the same maxim and the moral proposition that is: it is not permissible to provide for legal discrimination and inequality between different sexes, for exactly the same reason, can be thought as of universally valid. But this means that the test of universalization, as it is involved in the categorical imperative must fail in each of both cases - simply because the observation of each of both would result in their reciprocal annihilation. To resume the test of universalization must fail because the supposedly universal observation of the moral proposal: it is permissible to provide for legal discrimination, is always contradicted by the supposedly universal observation of the proposal: it is not permissible. Hence legal discrimination is an issue that can never be thought as of a universally valid norm, because it is always susceptible to be contradicted by the opposite, and inversely. The contingent nature of the positive law precludes universality. Another observation comes as support: The legal dimension of an issue can never be eloquent about the objective validity of the moral law that is involved in Kants categorical imperative. It follows 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 of a moral instance or outworker, not with reference to the positive law. Otherwise the question would result in a tautology: From the moment on when the law provides for discrimination, discrimination is permitted and the question if it is permissible to provide for legal discrimination, has become irrelevant. The same observation applies to the opposite case. Another observation comes as support:

Moral maxims or precepts such as: all human beings are born as equal people, are equal and free people regardless to sex, faith and race presuppose that human beings condition is quite another, through lack of legal protection or despite of 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 refers to the essence of human being and not to the contingence of ordinary positive law is important in this that it matches the second condition for the questions test relevance: The moral instance can be thought only as of human beings essence; the moral instance must be rooted in the essence of human being. To be reasonably and successfully subjected to the test of universalization, the proposal: it is permissible, must be thought against the background of the essence of human being. This assumes that the hypothesis of the permissibility, to be relevant for the test, must be examined against the background and with reference to the essence of 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 of law, but because such a legal permission must be thought and can only be thought as of a moral or super-legal outworker (human rights) which, if it were observed universally, would contradict and annihilate its presupposition (the essence of human being). There is hardly need to point the relevance of our demonstration for the whole gamut of human rights issues. The demonstrations relevance for our purpose is to be resumed as following: (i) the (morally) inadmissible and objectively unjust nature of legal discrimination and inequality is demonstrated by the categorical imperative; (ii) the categorical imperative is highly relevant with regard to the foundation of human rights. The question which arises then is whether the scheme developed by Habermas, if it were applied to the same example, would engender the same result or not. Here is not the place for an in-depth study of the issue; given its importance, the study of the issue is worth to be undertaken separately and in a more appropriate context. Instead of playing the whole think-game once again, it is more useful to pick up some considerations, to develop them and to play them against the background of Habermas scheme. Such a proceeding hopefully favors the engagement in further debates. Keep in mind that according to Habermas the norms universalization depends on the condition that all concerned people would accept the consequences and secondary effects of the norms universal observation upon the satisfaction of the interests of each of all and could prefer them rather than to accept the consequences and repercussions that are involved in other options, these consequences being accepted as far as they can be previewed. In our case the norm that is to be accepted is: it is permissible to provide for legal discrimination and sexual inequality. We have already seen that this norm, to be tested according to Kants categorical imperative, must be considered against the background of an instance that refers to and is rooted in the essence of human being. And we have seen that such a norm can never become a universally valid law if the question of the permission is evaluated with reference to the contingency of the positive law. It is clear that the essence of human being constitutes only one of the possibilities to conceive an instance that transcends the contingency of the positive law. The other possibility consists of a transcendental law that is rooted no longer in the nature of human being, but in a super-natural either religious or mythological order. Suppose that among the participants who have to evaluate the consequences of the norms universal observation are people for whom the valid law is rooted in such a transcendental order For these people the validity of 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 of any contingency. Suppose furthermore that this particular group is only one of the two groups that make the consistence of the whole participants/ discussants. The other one consists of the people whose social life is governed by the positive law, but who, at the same time, share the idea that, to prevent the positivist laws potential

deviance, inequality or injustice, there is need for a moral outworker that is rooted in the essence of 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 of human being or because its universal observation would contradict the inherent rationale of human rights validity (i. e. that human rights are relevant for all human being and are therefore to be observed universally). The former group might agree with this opinion or might reject it. If they agree, it is likely because their super-natural legal order does not permit sexual discrimination and inequality. If they reject the opinion, it is likely that they reject because their super-natural legal order that governs social life, does not only permit such practices, but requires for the norms 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 life of the second group pf the discussions participants, have been for a long time relevant to archaic societies and they continue, even in our times and today more than ever before, to be relevant for theocratic societies. The observation applies namely to those theocratic societies of our times that are governed by the sacred principle of sexual unequality. For our game - group as well as for its archaic and contemporary realities the acceptance of the norm: legal discrimination can never be permitted in regards to the essence of human being (human rights), holds for and constitutes necessary a transgression and given the legal orders sacred nature, an offence against the holiness of the law. Obviously there is no possibility to reach compromise, each of both can not accept the effects of the universal observation of the others norm. On this account the discussion can be expected to result in a zero-round and therefore it might be considered as useless. Why then discuss and about what? The first answer consists of the empirically highly relevant observation that the issue of human rights is brought to the fore of the debate. It is imaginable indeed that the group of those who do not accept the effects of the universally observed prohibition of 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 of a selective and accordingly unequal interpretation and application of human rights to human being. After all, they might argue, the notion of human rights, per definition, can never be the privilege of a particular group that would apply it in a discriminatory manner to another one of human beings. Human rights universal validity, they might argue, can never result in the rejection of human beings diversity and difference. In fact this argument is rooted in confusion and error. There is indeed a fundamental difference between the rationale that provides the contingent positivist law with a moral supervisor that is aimed at the correction of ethically undesirable or inadmissible consequences of the laws application and that is rooted in the essence of 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 far as it is rooted in the inherently commands of a super-natural, religious or mythical, order. In such a system there is no place for contingent law. Consequently there is no place for moral law policing. The law, in such a society, is the expression of a reality (order) that supposedly exists independently from any mediation. It is not the law that is contingent here, but human being; contingency is the essence of human being and law, by transcending human beings contingency, is somewhat human being contingencys policing, supervision and regulation. It follow (i) that the permission / authorization of legal discrimination and sexual inequality can never be accepted from the viewpoint of human rights; (ii) the norm that stipulates the permission can never be thought as a variant of the opposite norm and never be considered as of universally valid against the background of human beings essence; (iii) that it is not possible to think the norm; legal discrimination and sexual inequality are not permitted ethically (from human rights viewpoint) as of selective or discriminatory human rights interpretation either. Things are as they are there is no possibility for compromise. So you have the right to ask: Tell us what there is left for discussion? Obviously it is the reciprocal respect of each of both. It can neither be the norm that provides for the permission of discrimination, nor

can it be the opposite norm. The subject of discussion, therefore, must be the question whether the norms that shall govern this mutual respect, define the content and its limits and eventually sanction the transgression of these defined limits are universally valid or not. From now on each of both groups that ere engaged in the discussion must evaluate the issue whether (and to which degree) the effects of the norms that shall govern the mutual respect, if universally applied, could or could not be accepted by the members of the participant groups. The problem that consists of the question if the norm(s) that shall govern the mutual respect of each of both and consequently the acceptance of each of both norms (permission of legal discrimination and prohibition of legal discrimination) can pretend to be universally valid has been substituted for the original problem that consisted of the question if 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 of open conflict; ideally it culminates into a universally valid order of world peace that involves the mutual respect of opposite ethics. Couldnt it be that this advantage holds, contrary to Kant, for the success of Habermas' ethical program? Given the circumstance that Kants categorical imperative can never be a guarantee for peace and against open conflict, the issue is worth to be discussed in depth. Fact is that according to the categorical imperative, the prohibition of sexual discrimination and inequality can be perfectly considered as a universally valid precept in this that, to be universally valid it is sufficient that an individual or collective subject must will only that it becomes a universal law. This is obviously the case for all those who will the prohibition of discrimination to become a universal law and who will that in the name of the essence of human being. In which case they must will to accept open conflict with the subject (individual or collective) who do not will that this norm becomes a universally valid law, and they must will to defend their universally valid law if necessary with arms. The categorical imperative engenders categorical, radical consequences. As far as ethical principles such as : it can not be permitted to legalize sexual discrimination and inequality, can hardly be thought as of universally valid norms in regards to Habermas test of univeralization, Habermas ethical project can hardly be considered as a foundation of 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 of such a project to establish universally valid norms and normative limits that are aimed at the regulation of the mutual respect of different and even opposite ethics, but always equally valid and finally contingent ethics. If concrete ethical principles or systems were not considered as of contingency, there would be no need to provide for a universally valid norm of mutual respect. This is ethical pluralism in its purest form 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 of a foundation of human rights. Kants program, contrary to that of Habermas, can hardly be thought as of ethical pluralism. And it can not be a suspeceted promter of moral relativism either. As far as the prohibition of sexual discrimination and similar issues, to be universally valid law, can never be justified with reference to the contingency of the positivist law, but must be evaluated against the background of the essence of human being, the universal validity of such principles is necessarily and always limited to the culture of ethics rooted in and based on the essence of human being only. This is a demonstration for ethical monism, with all consequences that are involved, and there is hardly need to tell that the issue is as relevant for 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 Kants original project the tributary of the original signifier of ethics that is according to Aristotle a materialist rather than an idealist one being put beside.

Introduction As Kant, in his Doctrine of Law, has pointed, right comes into existence by virtue of the transformation of the natural state into the civil one. This assumes that (i) the existence and reality of right depends upon the constitution of a state; (ii) that right, to be relevant, requires a formal rule (law); (iii) that natural rights, in a constitutional state, take the form of civil rights. If men were not disposed to recognize 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 realization conformable to distributive justice. Were there, then, not even provisionally, an external meum and tuum in the state of nature, neither would there be any juridical 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 juridical 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. Every 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 judiciary 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 judiciary power, embodied in the person of the judge, is the function of assigning every one what is his own, according to the law (potestas legislatoria, rectoria, et judiciaria). These three powers may be compared to the three propositions in a practical syllogism: the major 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 judgement of right, in the particular case under consideration. SCIENCE OF RIGHT Second Part, 44-45

Given these observation the circumstance that Kant, in the literature of legal philosophy, is generally considered as one of the most certain defenders of legal positivism comes not really as a surprise. The circumstance that Hans Kelsens Pure Theory of Law is largely the tributary of Kant comes as a support. In this Review we have already published several articles that pointed at the ideology of terrorism and the embarrassment it causes to politicians, intellectuals and public opinion. Insofar our journal has engaged in the ethical debate about terrorisms moral crime talk.

Among the problems that came rapidly to the fore of the debate, the one that consists of the axiological and normative (human rights) supporter of terrorism comes in front. The reason is that such a think-piece is neither compatible with legal positivism, nor does it fit within the rationale of modern democracy. So as Hobbes Leviathan precludes, definitively, the relevance of the theory of tyranticide the model for the right to resist against oppression, so the think-piece of rights which are anchored in a superlegality that supposedly exists independently from the States legal system is completely foreign to Kants legal and political philosophy. In many regards there is a striking resemblance between Kants and Hobbes ethics. For each of both philosophers, the right against oppression is rooted in a reference that is external to the civil state of society and, consequently, there is no place for such a think-figure in law... It follows that the right to resist against oppression, accordingly to this interpretation scheme, can never be thought as of the civil society; it is completely foreign to the rule of law. When such a right comes into existence, civil society and the reign of law do no longer exist. The theoretically and practically highly relevant consequence is that the right for resistance against oppression, as far as this issue is to be thought as of natural right, suffers from a flagrant contradiction that seriously affects the legitimacy of the intellectually highly prominent and supposedly exciting thinkpiece which, by postulating the dualistic law conception, points at the coexistence of natural and positivist right, grants equivalence to each of both and assumes that each of both work and operate according to the principle of 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 of a law figure (natural law) that is thought as of 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 of positivist law by natural right and favors the confusion of both (Gilly 2005)i[i] Given the two core-postulates equivalence and simultaneity of such a theory, it is clear that the reappraisal of Kants and Hobbes ethics is an heuristically highly important issue in this that the reciprocal substitution of natural law for positivist law and the inverse, when being thought against this philosophical and ethical background, looses much if not all of its intellectual coherence. Considering terrorisms predisposition towards a legitimization that refers to a super-legality that is rooted in natural right and that is supported however controversial, by human rights, the reappraisal of Hobbes and Kants ethics, obviously, is highly relevant to the de-construction of both terrorisms ideology and the ideologys promotion in the public space. As far as the right of resistance against oppression is thought as of human rights, human rights is an issue that can no longer be considered being the certain and powerful supporter of political violence and of terrorism either. This paper is aimed at the discussion about and at the de-construction of the rationale that is inherent in terrorisms ideology. And this discussion is to be developed against the background of Kants ethics. In contemporary terrorism literature and research the reign of Terror during the French Revolution is generally interpreted as the key-event in the history of contemporary terrorism and many authors do not hesitate to see in the period 1793 -94 the origin of contemporary terrorism. The theory that provides for the linkage between this specific period of the French Revolution and forms of contemporary terrorism is the theory of tyranticide. For arguments sake this theory constitutes a major element in F. Furets works about the French Terror. It is also the leitmotif of Furets Terrorism and Democracy. W. Laqueur, in one of his first and most popular books about terrorism, interprets the reign of terror against the background of the theory of tyranticide. Obviously the best way to answer the question what has Kant to do with terrorism is the investigation of Kants opinion about the theory of tyranticide in its different expressions and the French Revolution.

Kants intellectual position towards revolutionary processes demonstrates a higher level of contradiction potential than Hobbes Leviathan in this that Kants positive attitude towards the French Revolution and the ideals promoted by the philosophy of Enlightenment neither precludes the critics of so called revolutionary legality, nor does it provide for an intellectual apologize of the theory of tyranticide as translated, in the environment of the French Revolution, in terms of regicide. In regards to this observation, Kants critical interpretation of the King Louis XVI trial and King Louis condemnation to death is worth to receive great attention. The trial and the death condemnation of King Louis - however paradoxical it may be, is to be interpreted as of a reversal within the revolutionary process that started in 1789. Emphatically but truly it can be said that the event, according to Kant, holds for the substitution of the irrational and terrific dynamics that are inherent in the revolutionary process for that what, according to Kants earlier writings, is to be thought as of the French revolutions tributary to the humanism and emancipation as promoted by the philosophy of Enlightenment. Contra it is always possible to make a mockery of such interpretation scheme. Indeed one may argue that for Kant the Revolution was already finished before it really began, the artificial think-piece that consist of the opposition between the humanist roots of the Revolution and its terrific reality being put aside. Such criticism can be easily attributed to the camp of critical theory and the whole tradition of the historiography of the French Revolution that is the tributary of Marxism as demonstrated in Marx German Ideology. In fact, the issue is more complicated. The split within the revolutionary process however artificial and critic it may be, is translated, at the level of Kants interpretation, as the process that supplants the reformist or legal aspect of the process that starts in 1789 by illegal and really revolutionary one that started with a crime (the assassination of Louis XVI) and culminated into terror. It is therefore possible to argue that Kants celebration of the French Revolution, in fact, is the celebration not of the revolution that is devoid of any legality and involves crime and terror, but of the legal reform of the French state. Cynically, but truly: Kants positive attitude toward the French Revolution is limited in this that it applies only to revolutions legality, which is a contradiction. As reform and revolution are terms that precludes each other and as terror is involved in the revolutionary illegality, Kants attitude towards terrorism can be reasonably outlined as follows: Kant has something to do with terrorism in this that his Science of Law (i) precludes the possibility to think terrorism as of legality; (ii) precludes terrorism as means to reform the state and / or to abolish injustice and inequality; (iii) precludes the legality of individual violence in an established state and the legality of all forms of collective violence that are not inherent of the states power (iv) suggests to think terrorism as an issue that is inherently rooted in revolution and therefore genuinely collective terrorism as far 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 terrorisms legitimacy with reference to another topic than that of legality. Here is not the place to engage in a debate about the pros and cons regarding Kants vision of the French Revolution, neither to provide an in depth-study about the historical controversy of the French Revolution. Rather it useful for our purpose to acknowledge that the event that is in question here is somewhat the judicial precursor of the government of Terror. According to a Kantian interpretation in regards to the chronology of the events,, the judicial terror culminates into the political one In regards to the nature of the revolutionary process the event demonstrates the lack of legality as it is, according to Kant, genuinely characteristic of the revolutionary process. On this account, the event is the empirically highly relevant supporter of Kants critical address of the legality of revolution. This does not mean that Kant would have ignored that, during the French Revolution, several constitutions came into existence. Rather it means that for Kant revolutions are illegal in the double sense of 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 definition for de-regulation or even the lack of regulation both with

regards to the legality of the regime that is to overcome and with regards to the process (intrinsic normativity. On this account and according to Kants think-piece, the revolutionary legality or even the revolutionary constitutionality is always the consecration, at the level of law, of normative de-regulation or the complete lack of regulation.

AGAINST REVOLUTIONS LEGALITY

Terrorism, as we all know, is often associated to revolutionary processes. The revolutionary process, per definition, is aimed at the destruction of the inherent legality of the government and form of state against which the process is directed. In regards of the legality that is to be abolished, the revolutionary process holds always for a state of 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 of law and society, the most important consists of interpreting the revolutionary process as an issue that, per definition, can not be thought as of (established) legality. The same observation applies to rebellion. It follows that revolution and rebellion somehow escape from the established legality of a given State. Insofar it is no longer possible to think the process as of legality / illegality. As it is unlikely that the State authorizes or encourages revolutionary movements or rebellions, it follows furthermore that, accordingly to this theory, the revolutionary process and the rebellion can not be thought as of illegality. What is involved in the preclusion of this hypothesis is that the lack of illegality the impossibility to think revolutionary and rebellious activity and behavior as illegal / criminal is automatically compensated by means of a super-legality that provides such behavior with legitimization. In legal terms this means that the lack of 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 of the Science of Right, points at the illegality of the right to resist against oppression. So as it is not possible to think the right of resistance as of legality, there is no need to question the origin of the supreme power, and there is no possibility to question the relevance of already united people under one common legislative will either. Obviously the second part of this proposal is somehow the beginnings of the first one. In other words this means that the illegality of the right of resistance derives from the absolute and empirically irreversible nature of 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. In other words, the subject 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 (jus controversum). For as the people, in order to be able to abjudicate 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 judge otherwise than as the present supreme head of the state (summus imperans) wills.

SCIENCE OF RIGHT Second Part, A

It follows that there is no possibility for an alternative construction of the supreme power that, if it were applied, would, given the irreversible existence of the supreme power its empirical and practical evidence, necessarily be rooted in a historicist rationale. And consequently there is no need for the members of a state to engage in the controversial debate about the nature of the contracts origin. Given the irreversibility of the civil society and of the supreme government the whole debate about the origins of 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 of the supreme power and expose themselves as citizen to useless however necessary, punishment and destruction. For instance when the members of a civil society engage in a debate about the origins of the civil society it is likely that such a debate culminates into the question whether the civil society is the result of a preliminary contract of 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 from law, that it has been constituted by means of an original contract. Obviously such a think-piece puts the civil society as well as the supreme power on permanent life risk. The reason is that the constitution of the state by means of an original contract that is necessarily scheduled by people who are owners of rights assumes that the however definitively established and existing power of 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 subjection (pactum subjectionis 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 subject, 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 citizen, according to the law and with full right, to be punished, destroyed, or outlawed; SCIENCE OF RIGHT Second Part, A As for the ethical rationale that precludes the debate of the states 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 of the law. At a first glance laws holiness is part of a think-piece that, to a certain degree, is the tributary of transcendental legality that is aimed at the supreme legitimization of the positivist law. But this assumes that the supreme and inviolable nature of the power is not as supreme, absolute and inviolable as Kant wanted it to be; otherwise there would be no need to refer to a transcendental legal support for the power of the state. Hence it follows, one may argue, that Kants think-piece suffers from an intrinsic contradiction. There is a striking resemblance between Hobbes and Kant in this that each of both think the absolute nature of the power and the inviolability of the law as of non-human authority as referred by the Bible. Hobbes is referring to the Biblical figure of the sea monster Leviathan, whereas Kant is claiming that all authority comes from Gd Given authoritys ultimate and transcendental rationale, Kants 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 of the supreme power and of legality, demonstrates that he largely remains the tributary of a theocratic or religious foundation of 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 of the first glance view.

Kants doctrine provides neither for a transcendental theocratic origin of the positivist law of the state, nor is his observation that all authority comers from Gd to be interpreted as a demonstration of a pre-laic conception of the law and the state. Kants comment comes as a support. The philosopher is telling us that the maxim that all authority comes from Gd does not express the historical foundation of the civil constitution, but an ideal principle of the practical reason. It may be otherwise rendered thus: It is a duty to obey the law of the existing legislative power, be its origin what it may. SCIENCE OF RIGHT Second Part, A At the beginning of this essay we have already noted that, according to Kant, the debate about the origin of the civil society and of the supreme power is useless and dangerous both with regards to its practical impact and its ethical consequences. Kants alert that the maxim does not express the historical foundation of the civil constitution largely confirms that Kant, according to our previous observation, by pointing at the empirical irreversibility and evidence of 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 of the origin, in Leviathan, does never loose its relevance for the foundation. Insofar Kants assertion that there is absolute duty to obey the existing legislative power, whatever its origin may be, is to be thought as of 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 fact, the duty to obey, for each of both, derives from the factual nature of the civil society and of the supreme power. As for the biblical references they neither hold for transcendental supporters of the foundation, nor are they to be considered as constitutive elements regarding the authority. They are in fact devoid of any practical impact, they are not realities; rather they are inherent topics in the process that establishes the factual nature of the power by means of analogy. As a result the factual and positivist nature of both the supreme power and the constituted civil society is emphasized at a degree that it culminates into radically secular society. It follows that the States 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 of lawmaking. The States supreme power, according to Kant, has even the right to make unjust laws and to provide unequal distribution of the political burdens. In this case the subjects may oppose complaint and objections against injustice and inequality, but not and never active resistance. For arguments sake Kant notes: Resistance 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. SCIENCE OF RIGHT Second Part, A

As revolutions are obviously rooted in peoples resistance against the State, the previous comment is likely to suggest that Kants practical ethics preclude revolution. Given that people, in case of unjust and unequal government and law making may, accordingly to Kant, oppose complaint and objections, the observation that Kant, instead of considering revolutions as legitimate and appropriate means to resolve

injustice, would rather defined himself as an adept of reform movement comes as a support ii[ii]. In fact such an observation however partly correct, is the tributary of confusion. Obviously there is a clear preference for reform. But such a preference refers to and is rooted in the maxim that law and order is possible only under the condition of the submission to the universal legislative will. This assumes that Kants doctrine of law does not preclude the factual nature of revolutions. Rather the inherent rationale points at the illegality and consequently the illegitimacy of the right of resistance and at revolutions illegality. The law can never provide legitimization to revolution, but law is susceptible to be reformed by means of the State powers decision making and reform is the only means to correct injustice and inequality in a way that is respectful of the law. So as resistance on the part of the citizen is illegal, regicide is, according to Kant, high treason and for it holds for political parricide to be punished by death. And least of all, when the supreme power is embodied in an individual monarch, is there any justification, under the pretext of his abuse of power, for seizing 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 SCIENCE OF RIGHT Second Part, A With this clear advocacy for the criminal nature of regicide (tyranticide) the illegality of resistance has reached its culminating point. The relevance of Kants comments is to be resumed as follows: (i) So as resistance against the State's power, so as rebellion and revolutions are illegal activities, terrorism must be thought as of crime. Terrorisms illegality is neither affected by the origin of the State; nor is it affected by the nature of the State. It follows that, given the radical legal positivism, must follow: a) that terrorism as a means to resist against all forms of 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 Kants philosophy and legal theory; c) that social and political inequality and injustice can never provide legitimization to terrorist activities. Terrorism is to be considered and to be sanctioned as treason. So as the slightest attempt for seizing the monarchs person or for taking his life requires very hard punishment, so the slightest terrorist activity, even the slightest plan or project requires the hardest sanctions. 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 of the people to make a contribution to the fight against terrorism. And such a contribution is to be performed even if the State who is engaged in this fight is one which constantly abuses its power or if it provides for abusive counter fight measures.

(ii)

(iii)

(iv)

Suppose that resistance against the sovereign power culminates into the substitution of a new power for the old. This assumes that the originally and genuinely illegal nature of resistance against the supreme power is somewhat the subject of 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 furthermore that terror (ism) is however controversial this may be, currently constructed as the means to achieve resistance. So as the institutionalization of genuinely illegal resistance might culminate into a newly established power, terrorist activities might engender the constitution of a new sovereign power. At first glance the institutionalization of a genuinely illegal activity can never affect the nature of this activity. It follows that the maxim: resistance is illegal applies also to the new sovereign power. The process of institutionalization does not affect the genuinely illegal nature of resistance, but it supplants the original reference ( old sovereign) by means of which resistance has been and is to be defined as illegal by that of a new ( new sovereign) by means of which resistance is to be defined, here again, as illegal activity. It is not the newly established sovereign who is criminal / illegal, although it is a derivation of 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 of its illegal origin. This is exactly Kants viewpoint and there is hardly need to point the tributary to Kants 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 subjects from the obligation of adapting themselves, as good citizens, 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. SCIENCE OF RIGHT Second Part, A

This comments relevance for terrorism is to be added to our list: (v) The circumstance that terrorist activities are at the origin of sovereign power does not affect the citizens obligation to obey to the rules of such a sovereign power; it can not affect this sovereigns right to fight against terrorism either. Resistance against this power in the name of its terrorist origin is criminal.

Suppose that the previous observation is understood as a maxim that is aimed to provide a guideline for 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 of the Palestine people and resistance against it: and it can not be a pretext for its de-legitimization either. Resistance and de-legitimization of the constituted power, either by the citizen or by foreign states, is always illegal according to this inherent maxim in Kants Science of Law., all the more so as the sovereign(s power has been constituted by means of election. A radical and of course highly controversial consequence; and yet the consequent application of this maxim to the Palestinian actuality requires for it Analogically the application of 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 of the Terror regime can never be thought as of legality. By virtue of which the inherent concept in progressive and Marxist French Revolutions history. the concept of 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 of the application of the categorical imperative to international politics and diplomatic relations, not to the legally constituted power. It consists of testing the universalization of a political strategy that is likely to consider Hamas as a politically correct partner for democratic states. The question: is it permissible to deal with a democratically elected partner who is not willing to recognize the existence of the only democracy in the Middle East area which is at the same time one of the worlds flagships of democracy? Obviously the answer is negative. If such permission were universalized, democracies aim would be the destruction of itself. Here is not the place to engage in a debate about the question whether it is preferable to support the moral philosopher Kant against the writer of the Science of Law or not. Rather is it the place to acknowledge that it is possible to argue with Kant (ethical solution) against himself (legal solution). The circumstance that the great democrat and Statesman Sir Winston Churchill, contrary to Chamberlain and the rest of the civilized world, was right with his vision of Germany is an issue that is to be seriously considered by those who are directly involved in such preferential choices. The first main part of this essay concludes with this critical note.

AGAINT REGICIDE. TERROR: PERVERTED LEGALITY

None of the observations we have quoted in the first part of this essay provides, in an eloquent manner, for the definition of terror and terrorism. As for the relevance of Kants practical philosophy and of Kants Science of law, none of the arguments developed in the first part of this essay in favor of this thesis is directly rooted in and supported by the passages we have quoted. Rather we demonstrate the relevance by referring to the topic of revolutions and resistances illegality and by means of the topics contextualization. As we will see in this part Kant does not provide for a current definition of terror (-ism). Instead of pointing terror as a means of government or as a means for political goal achievement, Kant proposes a cognitive or psychological definition of terror ((ism) that focuses on the collective experience of the emotional reaction against a historical event that, accordingly Kant demonstrates the complete perversion of law and the spirit of law. This event is the trial and death condemnation of Louis XVI. Hence neither resistance against the sovereign power is as such inherently terrific or terrorist; nor is it possible to consider regicide as inherently terrific or as of terror. Rather it is illegalitys legal transfiguration that holds for terror. Terror comes into existence as the result of the process that, by legally veiling crime (resistance and regicide), operates the perversion of law. Kant comments the issue as follows: 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 justice, but merely from regard to self-preservation. It 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 realizes the scenes that terminated the fate of Charles I or Louis XVI. SCIENCE OF RIGHT Second Part, A

The problem that is raised then is resumed with the question: What has the formal execution to do with the perversion of justice and why is it so terrifying? To explain the issue Kant, at a first time, points at the nature of such a collective feeling of terror. He clearly rejects the idea that such a feeling is rooted in aesthetic considerations or that it is produced by fancying ourselves in the place of the suffer. He addresses the moral nature of this feeling. And the nature of the feeling of terror and horror is moral in this that, explains Kant, it arises from the entire subversion of all our notions of rights. Why? Because Regicide, 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. SCIENCE OF RIGHT Second Part, A

At first glance Kants explanation contradicts our previous observation that regicide, as such, is not inherently terrific. And yet one thing is to address the moral nature and the moral roots of horror, another to explain the feeling itself. Hence the circumstance that the moral nature of our feeling consists of the subversion of all our notions of right that is involved in a crime that can never be expiated can hardly be considered as an eloquent information about the reasons of the feeling itself. This is why Kant feels obliged to develop another argument. Its premice consists of the observation that every transgression is to be explained with reference to the transgressors free will by which he makes the transgression his/her crime of action. Two different cases are to be distinguished: First, the transgressor/criminal commits his act according to the maxim of a rule that is supposed to be valid objectively and universally. In this case the offender completely rejects the authority of the law itself. The transgressors maxim is not defective 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 of the law is always confronted with the dilemma that consists in making his / her rule to act against the law, the validity of which he can never repudiate. Second, the transgressors maxim is defective as being positively contrary to the maw. This assumes that the transgressor, instead of rejecting the authority of the law itself, acts and commits his/her crime respectfully to it. It follows that he/she acts in accordance to the principle that the transgression is an exception from the rule Here is the place to open parentheses, which content is relevant to criminological discourse rather than directly for our purpose: If we compare the two figures and consider them against the background of criminological discourse and paradigm, an analogy between the transgressions that is respectful to the laws authority and committed as an exception form the rule and the notion of deviance. The former can be thought as of the latter in this that deviant behavior does never involve the categorical rejection of the norm with reference to which it deviates. Hence it is always to be considered as an exception regarding the respect of the laws authority. There is hardly need to tell that the positively illegal transgression is easily associated to the notion of crime in this and as far as the notion of crime is associated to the quality of a transgression (seriousness) that, by provoking a however diversified and differentiated, universal

repudiation, demonstrates crimes effective roots in the maxim that consists to think law-breaking as an objectively and universally valid rule. It follows that with few exceptions the majority of legally defined offenses are according to this analogical reasoning to be considered as deviance, not as crime. In turn, organized crime can be hardly thought as of deviance. The reason is that organized crime, by using legal settings as means for crime achievement, must be thought as of legalitys abuse or even complete perversion, demonstrating the complete rejection of the authority of law itself. Kant provides for support: In the latter case (transgression according to the maxim to make it an exception from 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. SCIENCE OF RIGHT Second Part, A

Obviously this comment applies easily to the majority of offenses as defined in our criminal codes; it is hardly valid for organized crime. With this observation our parentheses is closed. To explain the feeling of terror and monstrosity that is collectively experienced in face of an assassination that that is not intrinsically terrible, Kant points at the contradiction that is involved in the formal execution of a monarch as demonstrated by the execution of Louis XVI. By virtue of the formal execution, i.e. the execution that is respectful of the formal legal rules, namely the criminal process, an assassination, according to Kant, must be considered as only an exception from the rule. On the other hand it should be regarded as the complete perversion of the legal principles that are aimed at the regulation of 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. SCIENCE OF RIGHT Second Part, A

Therefore it is the perversion of law by means of the respect of the formal legal rules that is aimed to serve and support an illegal act that provokes the terror and the sensation of monstrosity. Whats about this illegal act? It is neither the trial; nor it is the accusation of Louis itself that is illegal. Rather it is the Kings accusation and condemnation on the ground of the supposedly criminal nature of his former 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. SCIENCE OF RIGHT Second Part, A How to conceive the Kings accusation and his condemnation as of legality? Here again Kants science of Law provides for an eloquent answer: It would have been legal to accuse and condemn him as a simple citizen who, by associating himself to the foreign nations and by favoring the belligerent reaction against the French Republic, would have demonstrate deliberately his will either to put the newly established sovereign on life 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 justice, but merely from regard to self-preservation. SCIENCE OF RIGHT Second Part, A

This perversion is, within the context of the French revolution, definitively accomplished with the trial and the condemnation of the King. And it is this particular meaning that is to be considered as the rationale of the split within the revolutionary process that is characteristic of Kants interpretation scheme of the French Revolution. Hence there is no revolution before the event that holds for the perversion is realized. And there is no terror either. The event announces the end of that what, according to Kant, is to be considered as a series of reforms. This essay does not provide for a conclusion; rather it opens the door for further discussion. Resistance is genuinely and intrinsically illegal. The same observation applies to regicide. None of both issues are intrinsically terrific or monstrous. What is terrific is the complete perversion of law by means of a formal legal support that is aimed to serve and support an illegal act. If it is not resistance as such that holds for the perversion, it must be the formal legal title the right to resist that operates the perversion. Obviously the think-piece does not fit within the modern political-philosophical tradition that goes back to Rousseau; it is not compatible with the general perception of the right of resistance by our contemporary societies. Nobody, in our times, is likely to associate the right of resistance with the perversion of right, all the more so as the right of resistance is currently thought as of human rights. And yet the circumstance that the right of resistance has been for a long time and continues to be terrorisms most powerful supporter should all of us incite to engage in a debate about the question whether, to which degree and from which moment on the however desirable and necessary topic of human rights is likely to become counter-productive both with regards to the stability of democratic states and with regards to the human being to which refers the notion of human rights and by virtue of which human being is granted with inalienable rights. When innocent people are killed in a terrorist attack and if however controversial and critical, such attack is either realized on the ground of the right of resistance against oppression or perceived and interpreted as its derivation or its culminating point, isnt it then not an intellectual and a moral obligation human rights potential of self-perversion? The right to fight against oppression and for the human right

and liberty perverts human rights when its exercise holds for both the violation and the complete annihilation of the basic human right of life through lack of which the other one, the right for liberty, is inconceivable, empirically and ethically, simply because free people are basically people ( empirical argument) and because the contraire argument that consists of the idea that the human right for life is conceivable under the condition only that life is free life culminates into an ethical monstrosity Free people only shall have the right to live? Are not free people not human beings? If we consider this observation against the background of Kants distinction between a transgression that is committed according to the maxim to make the act of 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 from the rule, then it becomes possible to think the self perversion of human rights, as it is involved in terrorism as the complete rejection of the authority of human rights.

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Soboul, A., ( 1981), La Rvolution Franaise. Paris: Editions Sociales Sole, ( 1988), La Rvolution en Question. Paris: Le Seuil lTulard, J. and Fayard, J.-F. and Fierro, A.. 1987), Histoire et Dictionnaire de la Rvolution Franaise.1789-1799. Paris : Robert Lafont

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In At the Crossroad Among Crime, Norms and Values ( ERCES ONLINE QUARTERLY Vol 2 Number 3), I have already pointed at the relevance of this issue for the critical human rights debate: The ambiguity of this construction consists of its natural predisposition towards the confusion between each of both orders. That what is involved here is the substitution of a natural or pre-legal conception of right and justice for a legal conception and vice versa, of a natural state of society for a civil state of society and vice versa. The most important practical consequence is that human rights provide processes of national liberation and auto-determination that involve violence as a practical means of elementary rights of human beings (conservation and preservation) with moral legitimization. At the same time human rights support the invasion of democracy and peaceful conflict solution by those archaic forms of violence that are inherent in the natural right of conservation and preservation. And yet the moralization of a pre- democratic and pre-legal state wherein violence is the natural expression of archaic rights, on the one hand, and the process that consists of the transfer of topics from status naturalis to modern democracy, on the other hand is an highly contradictory
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An alteration of the still defective constitution of the state may sometimes be quite necessary. But all such changes ought only to proceed from the sovereign power in the way of reform, and are not to be brought about by the people in the way of revolution; and when they take place, they should only effect the executive, and not the legislative, power.