Yussef Al Tamimi, June 16, 2015

1. Introduction – What is a human being?

Among the vast amounts of literature written on Immanuel Kant’s metaphysics, epistemology, ethics, and many other areas of thought, perhaps the least studied part of his oeuvre is his work on anthropology. It comes as no surprise, then, that some academics argue that Kant’s anthropology does not express his deepest philosophical concern.^[1] Nonetheless, it was Martin Heidegger who most famously argued for the relevance of Kant’s anthropology, claiming that “it seems true beyond a doubt that only a philosophical anthropology can undertake the laying of the foundation of true philosophy”.^[2]

Heidegger relied on a question that occurred several times in Kant’s work: “What is a human being?” Kant repeatedly stated that this is the most fundamental question in philosophy and said that “there is no greater important investigation for the human being than knowledge of the human being”.^[3] Although there is no particular place in his work where he answers this question, an image emerges from his philosophy of how he conceives of the human being. Kant famously regards man as a being endowed with rationality, distinct from all other animal species, and able to deliberate about and determine his own ends. This allows him to argue that man has to live by principles which he can himself, through reason, attain.

The aim of this paper is (i) to take a critical look at Kant’s conception of the human being and (ii) to examine how this conception can contribute to the concept of humanity in international law. In the first part of this paper, I will discuss the view of man that is present in Kant’s work, especially as he has presented it in Anthropology from a Pragmatic Point of View. I will argue that much of the communitarian and phenomenological critique of Kant is focused on a limited and misconstrued view of Kant’s conception of man. In the second part of the paper, I will examine how Kant’s conception of man can contribute to an understanding of the concept of humanity in international law. I will do this by discussing a modern Kantian interpretation of humanity in the context of crimes against humanity advocated by David Luban. Subsequently, I will enter into a discussion with Luban by considering two reflections on the relation between human beings provided by Emmanuel Levinas and Slavoj Žižek. I end with some concluding remarks on the contribution of this critique to the concept of humanity.

2. Kant’s conception of man

The indefinability of human nature

Kant believes, first of all, that there is a single nature common to man. He subscribes to the view that there is a set of common characteristics shared by all members of the human species in different times and places.^[4] This commitment puts him in opposition to those who, like Jean-Paul Sartre, assert that “there is no human nature (…) Man is nothing but that which he makes of himself”.^[5]

According to Kant, the answer to the question “What is a human being?” is the subject matter of anthropology. In Kant’s time, the study of human nature was generally conducted under the heading of empirical psychology.^[6] Kant, however, criticizes this practice for confusing questions of empirical psychology with those of transcendental philosophy, e.g. the issue of free will, which must claim an a priori status. There are two elements to Kant’s skepticism toward empirical psychology. Firstly, he principally doubts the prospects of empirical psychology as a science; explanations of human nature based on psychological data will never be more than hypothetical. Secondly, even relative to its limited possibilities, at the time the study of empirical psychology was in a highly unsatisfactory state.^[7]

Although Kant places the study of human nature at the foundation of his philosophy, he himself thinks that this study is made difficult because we are not acquainted with any other rational being with which to compare the human being. As a result, it is impossible to define what is peculiar to the human species.^[8] Kant says:

“It seems, therefore, that the problem of indicating the character of the human species is absolutely insoluble, because the solution would have to be made through experience by means of the comparison of two species of rational being, but experience does not offer us this.”^[9]

Moreover, studying the nature of the human being is made difficult by three characteristics that are inherent to human nature itself. First, Kant says that human beings have a strong tendency to disguise the truth about themselves. If someone notices that he is being observed, he will either become embarrassed, and hence unable to show himself as he really is, or he will deliberately dissemble, and refuse to show himself as he is.^[10] Secondly, even self-observation does not give a proper account of our nature, because our nature is concealed to us when we contemplate: “When the incentives are active, he does not observe himself, and when he does observe himself, the incentives are at rest.”^[11] Thirdly, human nature has become strongly intertwined with habits, which makes it difficult to distinguish what really belongs to human nature. All these factors make the study of human nature nearly impossible.

Nevertheless: man is a potentially rational being

Despite the difficulty of saying anything determinate about the nature of the human species, Kant does attempt to identify what makes humans different from other animal species. Regarding man’s differentiation from other animals, Kant says:

“(…) in order to assign the human being his class in the system of animate nature, nothing remains for us than to say that he has a character, which he himself creates, in so far as he is capable of perfecting himself according to ends that he himself adopts. By means of this the human being, as an animal endowed with the capacity of reason (animal rationabile), can make out of himself a rational animal (animal rationale).”^[12]

To Kant, the human being is not a rational animal. Rather, humans are animals capable of becoming rational. Human beings determine for themselves how they will live; they set their own ends and then develop for themselves the faculties they will need in order to achieve those ends.^[13]

Kant continues to describe the predispositions of the human being, which distinguishes him from other animals. Human beings have in common with other animals a predisposition to animality, that is, to instinctive desires and behavior aiming at self-preservation, reproduction of the species, and sociability. But human beings have three additional predispositions which are specific to the human species:

1. The technical predisposition: Man has a technical predisposition, in other words, the predisposition of skill, to manipulate his environment in order to preserve himself and his species.^[14]
2. The pragmatic predisposition: Secondly, man has a pragmatic predisposition to become civilized through culture.^[15] Kant states that man is capable of, and in need of, an education; human beings must pass on their capacities from one generation to another through education. Kant elaborates on this elsewhere, saying that human beings are made for society and that “all work for one, and one works for all”, whereas other animals can seek its food without help from another.^[16] Thus, human beings are dependent on other human beings to civilize themselves and become ‘well-mannered’ beings.^[17]
3. The moral predisposition: Thirdly, the human being is the only animal species that is capable of governing society through self-given rational laws in order to treat itself and others according to the principle of freedom under laws.^[18] Thus, the very nature of human beings includes the capacity for moral deliberation. Kant here examines the question whether man is good or evil by nature. He argues that man has the consciousness that he is subject to a law of duty and to the “moral feeling” that justice or injustice is done to him or to others. This consciousness is the intelligible character of humanity, and in this respect the human being is good. However, experience also shows that man has a tendency toward evil, which is present as soon as he begins to make use of his freedom. Thus, according to his sensible character the human being is also evil. According to Kant, being good and evil by nature at the same time is not contradictory; one does not exclude the other and the natural vocation of the human being consists in the “continual progress toward the better”.^[19]

In short, the human being can become a rational being by developing its predispositions beyond animality and it needs other human beings to achieve this. The human being is ‘destined’ to live in a society in order to develop his three dispositions:

“The human being is destined by his reason to live in a society with human beings and in it to cultivate himself, to civilize himself, and to moralize himself by means of the arts and sciences.”^[20]

Kant emphasizes that the development and actualization of reason takes time. He suggests that a person reaches his full use of reason as far as skill is concerned “around the age of twenty”, as far as prudence (the pragmatic predisposition) is concerned “around forty” and as far as wisdom (the pragmatic predisposition) is concerned “around sixty”.^[21]

Man’s unsociable sociability

So, for Kant, there is a progression in man toward rationality. This progression is driven by a certain discord that is found in man’s existence in society:

“(…) the characteristic of the human species is this: that nature has planted in it the seed of discord, and has willed that its own reason bring concord out of this, or at least the constant approximation to it. It is true that in the idea concord is the end, but in actuality the former (discord) is the means, in nature’s plan, of a supreme and, to us, inscrutable wisdom: to bring about the perfection of the human being through progressive culture, although with some sacrifice of his pleasures of life.”^[22]

Human reason thus develops under conditions of discord, or as Kant elsewhere calls it, ‘antagonism’ and ‘unsociable sociability’, that is, “the propensity [of human beings] to enter into society, bound together with a mutual opposition that constantly threatens to break the society up”.^[23] Human beings are social creatures in the sense that they naturally seek out members of their own kind. But they also possess the rational capacity to be self-aware and to esteem themselves. This self-esteem is accompanied by a competitive impulse to seek a superior status to other humans. This is where Kant resembles Rousseau when he states that culture inevitably leads to inequality. When people join together in society, the result is inequality, which, according to Kant, is “not to be seperated from culture”.^[24] Nonetheless, man cannot live without society:

“[The human being] encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas. He therefore expects resistance all around, just as he knows of himself that he is in turn inclined to offer resistance to others. It is this very resistance which awakens all man’s powers and induces him to overcome his tendency to laziness. Through the desire for honour, power or property, it drives him to seek status among his fellows, whom he cannot bear yet cannot bear to leave.”^[25]

Thus, Kant stresses the importance of society for educating the human species through generations and to motivate man to develop his reason through resistance. The natural purpose of unsociable sociability is to give human beings an incentive to develop the faculties of their species through competition. Though humanity has a strong unsocial character, it cannot be without being in a society.

Therefore, perhaps surprisingly, Kant highlights the necessity of living together in a society, especially for developing man’s predisposition to civilize himself. Many have criticized Kant for having an individualistic approach to morality, but Kant stresses the importance of society and culture in the pragmatic predisposition, which precedes and is constitutive of actualizing the moral predisposition. Kant has an approach that is almost phenomenological in its wording when he speaks of the relationship between man and society as “the society in which nature has placed him”.^[26] This reminds of the notion of in-der-Welt-sein which is central to phenomenology.^[27]

Kant’s conception of man has been questioned and criticized from different perspectives, among others by communitarianism. The communitarian critique concentrates on the individualistic approach in Kant’s philosophy. With Kant’s anthropology now clear, this critique seems largely unwarranted. Kant recognizes the essential function of society and culture in developing human reason; human reason cannot grow mature without the presence of a culture that civilizes and a society that educates the individual. It seems that the communitarians falsely charge Kant’s human being with being individualistic and deprived of a cultural embedding, because their critique is largely based on an incomplete and one-sided representation of Kant’s anthropology in John Rawls’ A Theory of Justice. This while Rawls clearly states that he interprets Kant’s view of man only to fit in his theory of justice as fairness.^[28]

Other phenomenological critics, like Max Scheler, who preceded the politico-theoretical discussion with Rawls, criticize Kant’s conception of human nature for exhibiting a deep distrust in man. Scheler argues that at the bottom of Kant’s philosophy “lies an attitude of Puritan Protestantism, a distrust in principle of one’s own “nature” and all its impulses”.^[29] Again, looking at Kant’s own anthropology, this seems to be an inadequate way of interpreting Kant. Kant’s suspicion of our natural desires is combined with an intricate understanding of our moral feeling for what is just, and both drive the human species to educate itself toward the better. Ultimately, Kant has a generally optimistic rather than pessimistic outlook at the tendency toward which the human species is moving.

Now, having thoroughly discussed Kant’s understanding of human nature, in the next chapter, I will examine how his understanding fits into the current use of the concept of humanity in international law.

3. The concept of humanity in international law

Man’s unsociable sociability in international law

What can Kant’s conception of human nature contribute to the term humanity in the context of international law? One modern interpreter of Kant’s view of man is David Luban. Luban^[30] argues through Kant’s notion of man’s ‘unsociable sociability’ that crimes against humanity should be understood as striking at the core of the human condition, namely the human being as a political animal. Referring to Hannah Arendt’s distinction between the social and the political, Luban interprets Kant’s notion of man’s unsociable sociability as a phrase to describe why we are not so much social animals as we are political animals:

“For politics is the art of organizing society so that the “mutual opposition which constantly threatens to break up the society” does not tum our “propensity to enter into society” into a suicide pact.”^[31]

For Luban, the political is a fundamental fact of human life: man needs to live in groups, but groups pose a perpetual threat to his individual interests. Hence, human existence involves a perpetual negotiation over the terms of his belonging to society; a belonging that, as Kant stated, we need and dread at the same time. Crimes against humanity arise when the same political institutions that man has organized attack him; they are “politics gone cancerous”.^[32] Crimes that involve attacks by states or state-like organizations upon groups within their political community attack our human nature by attacking both our natural need to organize into groups and our individuality by treating us only as members of a group rather than according to our personal characteristics:

“Crimes against humanity assault our individuality by attacking us solely because of the groups to which we belong, and they assault our sociability by transforming political communities into death traps.”^[33]

For this reason, Luban opposes the emphasis of, amongst others, Arendt on words like ‘diversity’ or ‘differentiation’ to define the human status.^[34] Such words obscure the distinction between the diversity of individuals and the diversity of groups. Unsociable sociability, on the other hand, by coupling sociality with individuality, keeps the distinction straight by underlining that the political animal has a double nature within which association and individuality cannot be reduced to each other.^[35] This double nature as individuals and group members is precisely what crimes against humanity assault: they are inflicted on victims based on their membership in a population rather than their individual characteristics. The crimes therefore possess a double character: they simultaneously assault individuals and groups.

Each human being, according to Luban, has an interest in addressing such political crimes on the basis that, in a world where such behavior goes unaddressed, “each of us could become the object of murder or persecution solely on the basis of group affiliations we are powerless to change”.^[36] Thus, man’s common humanity is affected when a crime against humanity occurs. Luban’s view is taken to be one of the sharpest demonstrations of how the international community’s right of criminal law enforcement is directly linked to the way the perversion of politics backfires on the entire international community and affects us all.^[37] Healthy politics, Luban says, is a politics that succeeds in containing the threat that social living inevitably poses to individual well-being.^[38]

Levinas’s critique of the humanity-concept

As I have mentioned in the previous chapter, the phenomenological critique of Kant is focused on a misconstrued complaint about Kant’s conception of human nature. Phenomenologists take Kant to be distrustful of human nature, while his human outlook is, for a considerable part, optimistic. Nevertheless, the critique by the phenomenologists has led to intriguing views on the role of humanity in (international) law and can function as a reply to modern Kantian interpretations like Luban’s. One I want to examine specifically in this chapter is the view of Emmanuel Levinas.

Levinas wrote extensively and critically about human rights. His account of human rights follows his broader critique of ‘totality’ developed in his work Totality and Infinity. Central to Levinas’s philosophical and political thought is the idea of the Other. For Levinas, the metaphysical relation between human beings is characterized by radical alterity, or what he calls ‘exteriority’. The Other stands before me as irreducibly present and yet utterly strange, radically “Other”.^[39] Moreover, the Other is prior to the self; the mere presence of the Other makes ethical demands before one can respond to them.^[40] Totality is problematic because of the way it deals with the Other^[41]; it eliminates the separateness of the Other by gathering the Other under the unity of a single system, limiting the Other to a set of rational categories, be they racial, sexual, or otherwise. This is a violence to the Other that denies the Other its own autonomy. It is a denial of the Other’s difference; a denial of the Otherness of the Other.

Levinas criticizes the Kantian view that the rational will can provide a basis for human rights. Noting that all beings are rational agents who act in order to achieve their selected ends, Kantians argue that human rights can be justified through a deduction of the conditions of the possibility of purposive action. Unlike Kantians, Levinas is not optimistic about the purity of the rational will.^[42] Levinas suspects that the rational might not be able to detach itself from its own impure interests. The will, in such a case, would remain susceptible to the influence of the irrational. For the powerful, this would mean that they may be in a position to coerce agreement from a weaker will. Liberal thinkers such as Hobbes and Kant are only able to establish human rights through a process of concession and compromise between possessive egos. Such compromises may be better than outright violence, but they still harbor traces of antagonism and egoism.^[43]

According to Veraart^[44], the work of Levinas, along with other phenomenological thinkers such as Max Scheler and Giorgio Agamben, is an attempt to save human rights discourse from its totalitarian tendencies. Veraart links the standpoint of Levinas to the eradication of the cultural order through human rights discourse. By calling attention to the metaphysical alterity between human beings, Levinas wants to emphasize the infinite plurality of our social and natural worlds. To gather these worlds under the unity of a single system is a violence to the Other and a denial of the Other’s difference.

On the same merits, Levinas opposes the use of a term such as humanity in ‘crimes against humanity’. For Levinas, the uniqueness of the Other transcends the human being’s belonging to the human species; the human being’s alterity goes beyond the individual differences of members of the same species.^[45] Humanity is a notion with totalitarian tendencies, because it aims to fit the Other under a single system. For this reason, Levinas would also reject the notion of humanity as advocated by Luban. Humanity actually lies in the proximity of the Other. Levinas’s view of politics and society is grounded in a primary concern for the ‘neighbor’, to whom I am connected by an original and non-reciprocal bond.^[46] My proximity to this neighbor is not arrived at by a logical or legal process. Instead, there is a primary command that establishes this proximity, a preconditional non-indifference to the neighbor, who is defined not geographically or biologically, but morally.^[47] The neighbor is therefore already all of humanity, prior to the introduction of society and even prior to consciousness.^[48]

Žižek on Levinas

What becomes clear immediately is that there is some kind of connection between Levinas’s critique of a totalitarian notion such as humanity and Carl Schmitt’s realistic view on universal liberal moralism. Levinas’s philosophy is based on the basic thought that there are always others who are entirely different from how ‘we’ are. Schmitt’s notion of the political as a fundamental friend-foe distinction is essentially based on the same idea. Schmitt’s foe is – in Levinasian terms – an Other.^[49] But Schmitt and Levinas go in different, if not opposite, directions from exactly that point. Levinas deduces an ethics from the existence of the Other and our face to face encounter with the Other. For Levinas, this ethics precedes the political and is a ‘first philosophy’. On the other hand, for Schmitt, there is a basic political life-and-death struggle between friends and enemies, which includes the real possibility of physical killing.

It is exactly this divergence that Slavoj Žižek addresses in his critique of Levinas in his essay Neighbors and Other Monsters. According to Žižek, Levinas’s deferral of politics to a moment subsequent to ethics ignores the primordiality of politics, thus rendering politics something ‘postpolitical’:

“Far from preaching an easy grounding of politics in the ethics of the respect and responsibility for the Other, Levinas instead insists on their absolute incompatibility, on the gap separating the two dimensions: ethics involves an asymmetric relationship in which I am always-already responsible for the Other, while politics is the domain of symmetrical equality and distributive justice. However, is this solution not all too neat? That is to say, is such a notion of politics not already “postpolitical,” excluding the properly political dimension (…), in short, excluding precisely the dimension of what Carl Schmitt called political theology?”^[50]

What Levinas fails to take into account, according to Žižek, is not the underlying Sameness of all humans, but the radical, ‘inhuman’ Otherness. Therefore, Levinas does not include into the scope of human the inhuman itself, a dimension which eludes the face-to-face relationship of humans.^[51] Levinas forgets that there is another third party of the very inhumanity within us; the monstrous Other of which the face of my neighbor covers over. For Žižek, we should not understand the neighbor as the neighbor that we encounter in the Levinasian experience of the Other’s face, but as the bearer of a monstrous Otherness, the properly inhuman neighbor.^[52] Žižek says:

“Far from displaying ‘a quality of God’s image carried with it,’ the face is the ultimate ethical lure (…) the neighbor is not displayed through a face; it is, as we have seen, in his or her fundamental dimension a faceless monster.”^[53]

The ultimate ethical gesture, therefore, is not merely embracing the human face of the Other, but rather embracing the thoroughly inhuman monstrosity which is the human neighbor. Žižek comes to this position through a Hegelian reading of Kant’s transcendental turn. A dimension of life that was introduced by the Kantian transcendental turn is that of the ‘inhuman’ understood as the feature which makes the human human. In pre-Kantian times, humans were simply humans, beings of reason, fighting the excesses of animal lusts and divine madness. With Kant, however, the excess to be fought became immanent, the core of subjectivity itself.^[54] Thus, when a hero went mad in pre-Kantian times, it meant he was deprived of his humanity; in other words, the animal passions or divine madness took over. With Kant, on the other hand, madness signaled the unconstrained explosion of the very core of a human being.^[55] Žižek argues that this humanly inhuman dimension is missed in the work of Levinas. Whereas the judgment “he is not human” means simply that this person is external to humanity, the judgment “he is inhuman” means something different, namely, that this person is neither simply human nor simply not human, but marked by an excess which, although it negates what we understand as humanity, is inherent to being human. It is only by insisting on this dimension that it becomes possible to satisfy the commandment to love one’s neighbor.^[56]

So, this is how Žižek aims to circumvent the Schmittian challenge: he radicalizes Levinas by including the inhuman in the Other. By doing this, he can claim that true justice is the step of moving beyond the face of the Other. Justice thus ignores the difference between the Same and the Other:

“We should therefore assume the risk of countering Levinas’s position with a more radical one: others are primordially an (ethically) indifferent multitude, and love is a violent gesture of cutting into this multitude and privileging a One as the neighbor, thus introducing a radical imbalance into the whole. In contrast to love, justice begins when I remember the faceless many left in shadow in this privileging of the One. Justice and love are thus structurally incompatible: justice, not love, has to be blind; it must disregard the privileged One whom I “really understand.””^[57]

Žižek’s conclusion is therefore both very non-Levinasian and non-Schmittian at the same time. For Žižek, the Third takes precedence over the Other, so he rejects Levinas’s attempt to place the Other at center stage in ethics. At the same time, Žižek rejects Schmitt by positing a moral norm, namely justice, as the core that defines the relation between the friend and the enemy. This is a radically non-Schmittian move, since in Schmitt the relation between the friend and the foe is determined by purely political, i.e. existential, considerations. The question therefore remains whether Žižek meets the same Schmittian challenge of the primordiality of the political he set for Levinas. In my view, Žižek provides a thorough moral foundation that can ensure a balance between the friend and the foe, something that remains obscure in Schmitt. Justice is blind for whether one is the friend or the enemy; justice has a certain elementary “coldness”^[58], which gives it the power to safeguard the balance between the friend and the foe. However, what remains completely unanswered in Žižek’s essay is what this justice should be and who is authorized to determine what it is. And this leads us straight back to the issue of the plurality of conceptions on what should be understood as the ‘just’ and who should be in charge of determining this. So to the question whether Žižek provides an answer to the critique of Schmitt, the answer should be no: the depiction of the relation between ‘us’ and the Other remains a postpolitical mirage in Žižek. What Žižek does provide is a strong moral foundation that gives substance to the relation between us and the Other. Such a moral foundation is, perhaps deliberately, lacking in Schmitt’s depiction of the friend-foe relation.

Back to Luban’s humanity concept

In his article on humanity, Luban also addresses the possible critique of Schmitt on his notion of humanity, but his subsequent rebuttal is unconvincing. Firstly, with regard to Schmitt’s argument that whoever invokes the concept of humanity “wants to cheat”^[59], Luban argues that international criminal law is something else than war-fighting. Instead of dehumanizing the enemy, international criminal law actually provides the perpetrators with legal protection, which is more “than they have any reason to expect”.^[60] I take this to be a very limited reading of what Schmitt means when he says that an appeal to humanity is a way of cheating. As Luban himself notes, in Schmitt’s eyes, the entire concept of humanity is a ruse that groups use in their struggle to master other groups.^[61] The competence to prosecute others that follow from international criminal law gives this law exactly the same potentially totalitarian traits as an appeal to humanity in war-fighting would. International criminal law in general, and the clause of crimes against humanity in particular, can be regarded as but instruments in the hands of one group to define what it recognizes as human and inhuman acts. Luban’s distinction between international criminal law and war is therefore too superficial.

Secondly, Luban defends his notion of humanity by arguing that Schmitt’s insistence on the inevitability of violent friend-enemy groupings in human affairs should not and cannot carry over to a government treating the people it rules as the enemy. Luban refers to the concentration camps in which the Nazi government murdered the people that lived under its own rule. According to Luban, this was the ultimate form of politics gone cancerous, and fighting this type of crime is not an evasion of the political as understood by Schmitt. But here Luban seems to overlook the main issue: there is no sovereign that would regard the ‘enemy’ in the Schmittian sense as someone or some group that operates from under its own rule; the enemy is always a threat from outside and is exactly a threat because it does not fall under the control of the sovereign. The Nazi government believed that the Jews where connected by a wealthy international network, outside the control of Germany, that could demolish Germany if it was not exterminated. More recently, Assad regards – perhaps partly accurately – the militant groups in Syria as foreign fighters, or at least as part of a foreign plan to topple his government. These examples show that Schmitt’s friend-enemy distinction is also relevant to situations that might seem internal from a distance, but are actually experienced as existential, political struggles by the parties involved.

Therefore, Luban still has difficulties with defending his concept of humanity from the argument against liberal universalism addressed by Schmitt. If Luban’s Kant-inspired notion of humanity is to survive – or rather, if any notion of humanity is to survive – it has to be strengthened in this area.

4. Conclusion

The aim of this paper was to take a critical look at Kant’s conception of the human being and to examine how this conception can contribute to the concept of humanity in international law. First, examining Kant’s work on anthropology has given an intriguing and surprising insight into Kant’s conception of man. Surprising, because criticism against Kant is often posed as a rejection of his individualistic approach to human beings, while his anthropology shows a radically different approach to man and his relation to society and culture. Wood^[62] goes as far as calling Kant a communitarian after examining his anthropology. I would not go that far, especially since Kant’s ethics undeniably has an individualistic legislative aspect to it – that is, man lays down the moral imperatives on himself through his own individual, rational deliberation. Nevertheless, the common critique that Kant’s human being is individualistic or ‘empty’ should be deemed inaccurate. Central to Kant’s view of the human being is their unsociable sociability: humans cannot bear each other, but at the same time cannot be without one another.

What can Kant’s conception of human nature contribute to the term humanity in the context of international law? That was the main question of the second part of this paper. Luban advocates a concept of humanity that is based on a modern interpretation of Kant’s notion of unsociable sociability. Human beings, according to Luban, are political animals as they seek to live in groups, but these groups pose a perpetual threat to their individual interests. Politics goes ‘cancerous’ when the same political institutions that man has organized attack him, and such cancerous propensities should be punished by international criminal law.

I reflected on this concept of humanity by addressing the thought of two philosophers who oppose the idea of universal human rights, Levinas and Žižek. Both attempt to save human rights discourse from its totalitarian tendencies by drawing attention to the transcendental Other who is fundamentally different from us. Žižek radicalizes Levinas’s view by including the inhuman in the Other and claiming that justice moves beyond the face of the Other. However, I argued that both Levinas as well as Žižek struggle to respond to Schmitt in excluding the political dimension from their theories. Nonetheless, I feel that Žižek’s conception of justice as the ‘cold’ arbiter between the Same and the Other is an adequate one, which rightly denies any privileged position for neither the friend nor the enemy. This blindness is a crucial characteristic of justice that merits special attention, especially in international law, where political and economic interests often play such a big role in determining what is considered legitimate.

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Veraart, W. ‘‘Not in our name!’: losing humanity in current human rights discourse’, in: B. van Beers, L. Corrias and W.G. Werner (eds.), Humanity across International Law and Biolaw, Cambridge: Cambridge University Press 2014.

Weitzman, E. ‘Necessary Interruption: Traces of the Political in Levinas’, Theory & Event 2008, vol. 11, no. 2.

Wilson, H.L. Kant’s Pragmatic Anthropology, New York: State University of New York Press 2006.

Wood, A.W. ‘Kant and the Problem of Human Nature’, in: B. Jacobs (ed.), Essays on Kant’s Anthropology, Cambridge: Cambridge University Press 2003.

Wood, A.W. ‘Unsociable Sociability: The Anthropological Basis of Kantian Ethics’, Philosophical Topics 1991, vol. 19, no. 1.

Žižek, S. ‘Neighbors and Other Monsters: A Plea for Ethical Violence’, in: S. Žižek, E.L. Santner and K. Reinhard, The Neighbor: Three Inquiries in Political Theology, Chicago and London: The University of Chicago Press 2005.

1. 1. M. Kuehn, ‘Introduction’, in: I. Kant, Anthropology from a Pragmatic Point of View (transl. by R.B. Louden), Cambridge: Cambridge University Press 2006, p. xi; H.L. Wilson, Kant’s Pragmatic Anthropology, New York: State University of New York Press 2006, p. 109-110. ↑

1. 1. M. Heidegger, Kant and the Problem of Metaphysics (transl. by J. Churchill), Bloomington, IN: Indiana University Press 1962, p. 215. In Heidegger’s interpretation, Kant attempted to lay the ground of metaphysics by revealing its inner possibility in “the subjectivity of the human subject”, see ibid, p. 176. ↑

1. 1. See R.B. Louden, Kant’s Human Being: Essays on His Theory of Human Nature, Oxford: Oxford University Press 2011, p. xvii and 84. The three sources in Kant are: Logik (Lectures on Logic), edited by G.B. Jäsche (Akademie Ausgabe, vol. 9, p. 25), a letter to C. F. Stäudlin of May 4, 1793 (Akademie Ausgabe, vol. 11, p. 429) and Metaphysik-Politz (Akademie Ausgabe, vol. 28, p. 533–34). ↑

1. 1. Louden, Kant’s Human Being: Essays on His Theory of Human Nature, p. xix. ↑

1. 1. J.P. Sartre, ‘Existentialism Is a Humanism’, in: W. Kaufmann (ed.), Existentialism from Dostoevsky to Sartre, Cleveland: Meridian 1956, p. 290-91. ↑

1. 1. A.W. Wood, ‘Kant and the Problem of Human Nature’, in: B. Jacobs (ed.), Essays on Kant’s Anthropology, Cambridge: Cambridge University Press 2003, p. 45. ↑

1. 1. Ibid., p. 47. ↑

1. 1. Ibid. ↑

1. 1. I. Kant, Anthropology from a Pragmatic Point of View (transl. by R.B. Louden), Cambridge: Cambridge University Press 2006, p. 225. ↑

1. 1. Ibid., p. 5. ↑

1. 1. Ibid. ↑

1. 1. Ibid., p. 226. ↑

1. 1. Wood, Kant and the Problem of Human Nature, p. 51. ↑

1. 1. Kant, Anthropology from a Pragmatic Point of View, p. 226. ↑

1. 1. Ibid., p. 228. ↑

1. 1. See Wilson, Kant’s Pragmatic Anthropology, p. 49. ↑

1. 1. Kant, Anthropology from a Pragmatic Point of View, p. 228. ↑

1. 1. Ibid., p. 228-229. ↑

1. 1. Ibid. ↑

1. 1. Ibid., p. 229-230. ↑

1. 1. Ibid., p. 95. ↑

1. 1. Ibid., p. 226. ↑

1. 1. See the Fourth Proposition in Kant’s essay Idea for a Universal History with a Cosmopolitan Purpose (1784); I. Kant, ‘Idea For A Universal History With A Cosmopolitan Purpose’, in: H. S. Reiss (ed.), Kant: Political Writings (2nd ed.), Cambridge: Cambridge University Press 1991, pp. 41-53. ↑

1. 1. I. Kant, ‘Conjectural Beginning of Human History’, in: G. Zöller and R. B. Louden (eds.), Anthropology, History, and Education, Cambridge: Cambridge University Press 2008, p. 170. ↑

1. 1. Kant, Idea For A Universal History With A Cosmopolitan Purpose, p. 44. ↑

1. 1. Ibid., p. 234. ↑

1. 1. Without getting too anachronistic, it would perhaps even be possible to argue that Kant’s idea of man as a ‘potentially’ rational being resembles some variation on the central phenomenological notion of man as a ‘becoming’ rather than a ‘being’, which is present in, for example, Scheler’s thought. The similarities and differences between these two positions, however, is a topic for a different paper. ↑

1. 1. J. Rawls, Theory of Justice (2nd revised edition), Cambridge: Harvard University Press 1999, p. 226. Rawls says: “(…) [my] Kantian interpretation is not intended as an interpretation of Kant’s actual doctrine but rather of justice as fairness.” See also M. Ferguson, ‘Unsocial Sociability: Perpetual Antagonism in Kant’s Political Thought’, in: E. Ellis (ed.), Kant’s Political Theory: Interpretations and Applications, Pennsylvania: Pennsylvania State University Press 2012, p. 150-151. He writes: “[Kant’s] insistence on the imperative of setting laws that could command universal consent inspired John Rawls’s attempts to establish the basic principles for a just society by imagining what a rational individual could consent to in abstraction from the particulars of his life situation. (…) These contemporary appropriations tend to interpret Kant’s work as that of a moral philosopher who abstracts away from the complexity of reality in order to identify clear, systematic rules that could guide rational agents in their everyday lives.” ↑

1. 1. M. Scheler, Formalism in Ethics and Non-Formal Ethics of Values, Evanston: Northwestern University Press 1973, p. 67. ↑

1. 1. D. Luban, ‘A Theory of Crimes against Humanity’, Yale Journal of International Law 29 (2004), pp. 85-167. ↑

1. 1. Ibid., p. 113. ↑

1. 1. Ibid., p. 117. ↑

1. 1. Ibid., p. 160. ↑

1. 1. Ibid., p. 115. Luban refers to a passage in Arendt’s The Life of The Mind, where she writes: “Everything that exists among a plurality of things is not simply what it is, in its identity, but it is also different from others; this being different belongs to its very nature.” See p. 115, fn. 106. ↑

1. 1. Ibid., p. 116. ↑

1. 1. Ibid., p. 141. ↑

1. 1. H. van der Wilt, ‘Crimes against humanity’, in: B. van Beers, L. Corrias and W.G. Werner (eds.), Humanity across International Law and Biolaw, Cambridge: Cambridge University Press 2014, p. 35. ↑

1. 1. Ibid., p. 119. ↑

1. 1. E. Levinas, Totality and Infinity (transl. by A. Lingis), The Hague/Boston/London: Martinus Nijhof Publishers 1979, p. 33, 39. ↑

1. 1. Ibid., p. 43. ↑

1. 1. Ibid., p. 21-22. ↑

1. 1. S. Davidson, ‘The Rights of the Other. Levinas and Human Rights’, in: S. Davidson and D. Perpich (eds.), Totality and Infinity at 50, Pittsburgh: Duquesne University Press 2012, p. 176. ↑

1. 1. Ibid. ↑

1. 1. W. Veraart, ‘‘Not in our name!’: losing humanity in current human rights discourse’, in: B. van Beers, L. Corrias and W.G. Werner (eds.), Humanity across International Law and Biolaw, Cambridge: Cambridge University Press 2014, pp. 152-177. ↑

1. 1. Ibid., p. 173. ↑

1. 1. E. Levinas, Otherwise than Being (transl. by A. Lingis), Dordrecht: Kluwer Academic Publishers 1991, p. 85. ↑

1. 1. S. Hand, Emmanuel Levinas, London and New York: Routledge 2009, p. 55. ↑

1. 1. Levinas, Otherwise than Being, p. 83. ↑

1. 1. There have been attempts to reconcile the two views as well as to disprove this comparison; see e.g. E. Weitzman, ‘Necessary Interruption: Traces of the Political in Levinas’, Theory & Event 2008, vol. 11, no. 2 and A. Botwinick, ‘Same/Other versus Friend/Enemy: Levinas contra Schmitt’, Telos 2005, no. 132, pp. 46-63. ↑

1. 1. S. Žižek, ‘Neighbors and Other Monsters: A Plea for Ethical Violence’, in: S. Žižek, E.L. Santner and K. Reinhard, The Neighbor: Three Inquiries in Political Theology, Chicago and London: The University of Chicago Press 2005, p. 149. ↑

1. 1. Ibid., p. 158. ↑

1. 1. Ibid., p. 162. ↑

1. 1. Ibid., p. 185. ↑

1. 1. Ibid., p. 9. ↑

1. 1. Ibid., p. 10. ↑

1. 1. Ibid. ↑

1. 1. Ibid., p. 182. ↑

1. 1. Ibid., p. 183. ↑

1. 1. C. Schmitt, The Concept of the Political, Chicago and London: The University of Chicago Press 2007, p. 54. ↑

1. 1. Luban, A Theory of Crimes against Humanity, p. 123. ↑

1. 1. Ibid., p. 122. ↑

1. A.W. Wood, ‘Unsociable Sociability: The Anthropological Basis of Kantian Ethics’, Philosophical Topics 1991, vol. 19, no. 1, p. 342. ↑