The paper starts out from a debate that occurred in Germany in 2015, where interpreters claimed to be able to divine Immanuel Kant’s views of the contemporary refugee crisis. It does not attempt to give a substantive answer to the title question, i.e. it does not try to specify the conclusive extension of cosmopolitan right. In contrast, it outlines the systematic work that would have to be done in order to be able to answer the title question. I start from cosmopolitan right as natural right and ask what kinds of transformations cosmopolitan right would have to undergo to form a legitimate part of public international law, in parallel to Kant’s move from provisional private law to peremptory public law in his Doctrine of Right. For that purpose, I introduce distinctions between trivial and non-trivial transformation, between strong (i.e. property-related) and weak (property-unrelated) transformation, and between transformation based on historically blameworthy and historically blameless action.
In September 2015, while discussing the impact of the short-lived opening of its territorial borders to refugees, intellectual Germany was briefly enthralled by a debate on Kant’s Toward Perpetual Peace. While large numbers of migrants were making their way to Germany, and some German and Central European politicians voiced increasing skepticism about their claims, the philosopher Byung-Chul Han defended their universal right to residence based on Kant’s notion of hospitality. Kant held, Han argued, that every foreigner has a right to stay (Bleiberecht) in another country – according to Kant, he may remain there and not be treated with hostility “‘as long as he behaves peaceably where he is’.” Han derives this interpretation from Kant’s alleged view that “no one has ‘more right than another to be on a place on earth’.”1 Of course, Han’s last quotation from Perpetual Peace leaves out the modifier “originally” in “no one originally had more right than another to be on a place on earth” and thus transforms a ground of past entitlement – the idea of a “possession in common of the earth’s surface” [pp 8:358]2 – into a present day prescription. Han’s selective quotation also eclipses the qualification Kant introduced, between the two passages quoted, on the right to hospitality. Kant states that what the new arrivals can claim, based on the argument of original common ownership, “is not the right to be a guest … but the right to visit” [pp 8:358].
In a radio interview, Volker Gerhardt, an experienced Kant scholar, attempted to set the record straight.3 Explaining that Kant had introduced the right to hospitality as an antidote to colonial expropriation, Gerhardt points out that Kant had actually postulated a “right to visit, but not the right to be a permanent guest in another country.”4 When the radio host mentions Kant’s argument from the idea of original common ownership, Gerhardt replies that Kant, as a champion of property rights, would have objected to invoking natural law to counter the rights of the current inhabitants. For example, he would have opposed the expropriation of private flats to house new arrivals, or the coercive requisitioning of accommodation. At the same time, Gerhardt argues that under given historical circumstances, we should interpret the Kantian duty to receive visitors in a broad and extensive way. It was European expansionism and the subsequent processes of decolonization, imposing contingently drawn borders on territories outside Europe, that were partly responsible for the politically unstable situations we are now witnessing. Gerhardt also points out the humanitarian dimension of a contemporary ‘right to visit’: a right that no longer mainly caters to wealthy travelers, merchants, or researchers, but is claimed by people driven from their countries of residence through hunger, instability, persecution, and war. Finally, he points out that in the past, German citizens were welcomed abroad and helped by other countries, especially expatriates fleeing Nazism after 1933. He concludes that European states, and Germany in particular, are now under a duty to redress the causes of the refugee crisis.
My aim in introducing this brief debate is not to invite us to take sides in an exchange among interpreters of Immanuel Kant. The first interpretation does very little to defend itself in terms of content or method, and the second interpretation, although mostly sound, seems methodologically speaking to be on shaky ground too (and understandably so, in a radio interview). But the brief exchange generates an important question. If what is at issue is what Kant would have said in the current refugee crisis, which considerations matter in determining the content of Cosmopolitan Right?5 Can we have a full grasp of the extension of cosmopolitan right by staring hard at Kant’s texts and applying the wording of the relevant paragraphs from Toward Perpetual Peace or the Doctrine of Right to the situation at hand? This question does not mirror the popular complaint about the regrettably short treatments of cosmopolitan right, which admittedly leave some important gaps. Nor does it invoke contemporary skepticism, based on genealogical or Cambridge School methods, as to the stable and time-transcending meaning and application of political terms, such as “rights,” “republic,” “cosmopolitanism,” etc. It is rather a systematic query about the “final form of Kant’s practical philosophy”:6 Can we spell out his claim that a right to hospitality is not a philanthropic duty, but a matter of law, in any straightforward sense, and give this right a definite profile? Is an extrapolation of the contents of this right permitted; is it perhaps even necessary? Which are the factors that would have to be reflected in an extrapolation? Do we know which historical information is relevant in interpreting cosmopolitan right? Does cosmopolitan right yield the same prescriptions in the state of nature among nations and within an international public legal order, in the way that we conceive of the United Nations today? Or can it be made plausible that just like international law undergoes a ‘transition’ from a state of nature between states to a global legal condition, cosmopolitan right will need to undergo a similar transformation?
In what follows, I attempt to present a framework, guided by the main ‘transitional’ category in Kant’s legal theory, the move from private to public law, which in some contexts he also describes as the move from provisional to peremptory, or conclusive law. I start with Kant’s introduction of this dynamic in the transition from private law in the inter-individual state of nature to the public law in a ‘civil condition,’ i.e., a state (i.). I will then discuss the same movement for the state of nature among states, and introduce a feature in which the transition from the international state of nature to global public law is dissimilar to the inter-individual case: its broader and unorthodox meaning of ‘provisionality’ (ii.). I argue that cosmopolitan right stands in need of transition from private to public law, too, combining the modes of transition from the inter-individual and the international case (iii.). In interpreting the derivation of Kant’s cosmopolitan right, I then outline the bases for the ‘conclusive’ claims that refugees will be able to make (iv.). This will not allow me to draw substantive conclusions as to the exact extension of the rights of refugees from Kant’s point of view, but to suggest grounds on which they should be discussed.
I Private and Public Law
A basic organizing distinction in Kant’s Doctrine of Right is that between private and public law. After the introductions both to the Metaphysics of Morals in general, and to the Doctrine of Right in particular, the body of the text is then divided up into a first part on Private Law (Privatrecht) and a second part on Public Law (Öffentliches Recht). Private law governs the state of nature; it covers horizontal relations among individuals as far as their legal claims and duties vis-a-vis each other are concerned. Public law governs relations between individuals and states, as well as among states. Its tripartite structure comprises state law, international law, and cosmopolitan law. Whereas state law regulates the relations between states and their citizens, and international law regulates relations among states, cosmopolitan law regulates relations between states and non-citizens.
Officially, the section on Private Law in the Doctrine of Right begins only with Kant’s treatment of acquired right and includes property, contract, and family law [dr 6:243–308]. But it can be asked whether our single innate human right to freedom (as independence of another’s necessitating choice) [dr 6:237], even though it is introduced already in the “Introduction to the Doctrine of Right,” and therefore supposedly foundational for, or at least neutral vis-a-vis, the two main parts of the Doctrine of Right, is also a matter of private law, given that it deals with horizontal relations among citizens, and therefore supposedly holds in a state of nature in which no state is present, as well as governing the vertical relation between states and citizens. The answer depends on the following consideration.
Natural law is defective law,7 and the defects of private law in the state of nature stand in need of a remedy. This is because our claims in the state of nature, as Arthur Ripstein has helpfully summarized, lack determinacy and assurance, and they suffer from the unilateral character of our judgments.8 In the case of property rights, the latter problem is particularly salient. Our unilateral claims to private property “put all others under an obligation, which they would not otherwise have” were it not for the fact that we have staked out some object as our own [dr 6:247]. But what accounts for the normativity of such claims? In the state of nature, the aporiae of unilateralism, indeterminacy, and lack of assurance cannot be resolved. On the contrary, Kant believes that property claims to external objects will unleash a dynamic of institution-building. They cannot but originate in a unilateral way, which is why they command only provisional status, which then has to be converted to a peremptory or conclusive status under a legal-political system affording a “general will” and installing authoritative legislative, judicatory, and executive authorities. Note that under this justification, which locates the defectiveness of provisional rights in their unilaterally imposed character, the need for transforming private into public law is connected to what is characteristic about property appropriation. A transformation from provisional to conclusive law is not by the same token required in contract or family law, for my contractual command over your future action, as when I commission you with writing a piece of music for my orchestra, or give you a marriage promise, involves no unilateral acquisition of your choice. Both claims are void without your consent. Kant’s original distinction between provisional and peremptory law therefore does not apply to all matters of private law, but exclusively to the acquisition and holding of property in external material objects.9
There is an important ongoing and unresolved debate as to the depth and impact of the changes that the transformation from natural to positive, from private to public, or from provisional to peremptory property law requires, but this is not the place to attempt to resolve it. Is the general will to rubber stamp, the police to protect, and the judiciary to safeguard existing allocations?10 Or will historical arguments be introduced in settling who (peremptorily, conclusively) owns what, tracking the quality and quantity of entitlements claimed? Will distributional constraints such as sufficiency or equality need to be considered at the stage of transformation?11 For the discussion that lies ahead, it suffices to distinguish between trivial (or “pure Cambridge” transformation) and non-trivial transformations, where a ‘trivial’ transformation consists in the legal recognition of what people have already secured as their property in the state of nature (‘rubber stamping’), and where ‘non-trivial’ transformation means that at least some substantive re-ordering takes place (‘redistribution’).
If people have a right to follow their own views of what rights they have, or of the extension of their rights, in the state of nature, the conflicts that arise will presumably not be restricted to their views on external property rights. There is reason to assume that use of our innate freedom “to do to others anything that does not in itself diminish what is theirs” [dr 6:237], will fail to harmonize with other people’s interpretation of their powers and freedom. For example, there may be conflicts between the right to free speech that Kant derives from everybody’s innate right to freedom, and the right not to be insulted or libeled that he thinks can be derived from the same source: While I may think that your describing my activities as less than credible amounts to libel, you may believe to have acted within your rights and not interfered with what is ‘internally’ mine [cf. dr 6:238 fn.]. In the same sense, our exercises of our contractual powers, or of our family relationships, although not amenable to the same transformation from provisional to conclusive property that external property acquisition will have to undergo, may stand in need of an omnilaterally consented interpretation, and therefore only find determinacy in a civil condition.
however well-disposed and law-abiding human beings might be, … before a public lawful condition is established, individual human beings, peoples and states can never be secure against violence from another, since each has its own right to do what seems right and good to it and not to be dependent upon another’s opinion about this. dr 6:312, emphasis in the original
Let us therefore accept that even disregarding the specific problem of unilateral, and therefore provisional, property appropriation, our use of rights in the state of nature is inherently unstable, both cognitively and practically, and let us also assume, with Kant, that this instability can be overcome through the establishment of a legal-institutional condition. We can still distinguish two different motivations for the transformation from Private to Public Law. The presumption of rightfulness in the case of unilateral appropriation generates a provisional, but nonetheless not merely subjective legal title. Although by no means uncontroversial, claims to original appropriation hold “comparatively as rightful possession” [dr 6:257]. Of course, all activity regarding external objects may be riddled with further insecurities and indeterminacies, and in this regard resemble the use of contractual powers and claims to innate rights, but originally claiming an object has objective normative consequences, regardless of the interpretative differences that might accrue to it. It is unclear whether contractual freedom or innate right should be thought of as generating any such ‘provisional’ entitlements. Let us therefore distinguish between strong transformation and weak. Strong transformation refers to areas of law that are characterized by unilateral action creating a provisional title, which then will have to be redeemed, i.e. accepted, modified, or rejected in the transition to peremptory legal validity. (I should stress that, conceptually, strong transformation is perfectly compatible with trivial transformation.) Strong transformation resolves conflicts over the appropriation of unowned territory, i.e. over candidates for external meum et tuum, but other people’s freedom, and other people’s choices, are not such candidates: “Kant does not acknowledge provisional legal possession derived from another person’s internal property.”12 As internal meum et tuum, the free choices of persons already resemble property that is definitively owned, in the sense that we already know that unconsented intervention into such choices is impermissible. But that fact does not make conflicts over internal meum et tuum go away. Weak transformation therefore concerns all areas in which conflicts loom because of diverging interpretations of the scope and extension of rights, but which are unrelated to provisional holdings. Weak transformation resolves conflicts that arise over the exact extension of internal meum et tuum.
II Private and Public International Law
The question to be discussed in this section is whether the transformation from private to public international law is of the strong or of the weak kind (as opposed to whether it is of the trivial or non-trivial kind). The terminology (‘provisional’ – ‘conclusive’) employed in the quoted passage echoes the language Kant used when discussing the defects of individual property acquisition and suggests that the transformation may be of the strong variety. My answer will be that the transformation is best interpreted to involve both strong transformation and weak, and that it additionally acquires a further dimension that Kant did not discuss in the inter-individual case.
Since a state of nature among nations, like a state of nature among individual beings, is a condition that one ought to leave in order to enter a lawful condition, before this happens any rights of nations, and anything external that is mine or yours which states can acquire or retain by war, are merely provisional. Only in a universal association of states (analogous to that by which a people becomes a state) can rights come to hold conclusively and a true condition of peace come about. dr 6:350
Ripstein argues that for Kant, “[t]he state is always necessarily in possession of its territory, just as a person is always in possession of his or her own body.”16 International law holds between states, in a situation where borders are already defined and any foreign acquisition would permeate another state’s borders. Thus we can rule out under international law a presumptively rightful acquisition of territory by other states through war. On the other hand, Kant seems to treat acquisition of dominion over territory through war as possible, though non-rightful. For example, the threat arising from a neighboring potentia tremenda (terrifying power) results from its recent “acquisition of territory” [dr 6:346], and, in Toward Perpetual Peace, he assumes that dominion over territory can, but ought not be, bought and sold, inherited, gifted, married away, etc., given that such practices annihilate the freedom of peoples [pp 8:344]. But the very idea that war takes place between states rules out that acquisition of territory through war can be first acquisition, i.e. be considered provisionally rightful.17
[T]he idea of international law involves only the concept of an antagonism in accordance to principles of outer freedom by which each can preserve what belongs to it, but not a way of acquiring, by which one state’s increase of power could threaten others. dr 6:347
In the transformation of states’ claims to external property from provisional to peremptory, there are therefore at least three cases that need to be distinguished, and only one of them corresponds to the transformation from provisional rights, deriving from blameless first acquisition, to peremptory rights in the establishment of a civil condition between individuals. Kant separately refers to all three cases when he states that “any rights of nations, and anything external that is mine or yours which states can acquire or retain by war, are merely provisional” (see above, dr 6:350). In the remainder of this section, I first outline the case of “any rights of nations” as cases disregarding “anything external” (1), then turn to the two variants of “anything external that is mine or yours” that can give rise to disputes: possession acquired (2) and possession retained (3).
(1) By the phrase “any rights of nations,” Kant refers to the ius ad bellum, ius in bello, and ius post bellum that he discussed in the preceding paragraphs. All of these raise problems of determinacy and assurance, and may or may not have to submit to a non-trivial transformation. In contrast to the provisions of ius post bellum, most rules of the ius ad bellum and ius in bello refer to states’ ‘internal’ possession, which is to say, their right to external freedom of action. For example, the Doctrine of Right defends restrictions on the means of warfare as commanded by the status of soldiers as ends-in-themselves, i.e. as mandated by natural law [dr 6:347]. At the same time, the provisions against the use of poisons, snipers, or spies are considered necessary conditions for introducing an international civic condition, since violating them ‘would destroy the trust requisite to establishing a lasting peace’ [dr 6:347; pp 8:346], i.e. a condition of public international law. Now of course, ius in bello treaties may have to specify what will count as poisoning, sniping, or impermissible spying, and thus determine states’ rights and, perhaps, go some way toward assuring that they will be upheld. But the war crimes Kant has in mind do not involve states’ acquisitions of property, and therefore relate, in Ripstein’s sense, to their meum internum. The transformation of the rules of the ius in bello in the course of proceeding from a state of nature governed by natural law, to a state of contractually specified public international law, is therefore to be classified as a weak (and, largely, trivial) transformation. Other rights will undergo a weak transformation that is far from trivial, as in the case of the ius ad bellum: While under natural, i.e. private international law, it is acceptable to attack a potentia tremenda for preventive reasons [dr 6:346], an “easy application” of a thought experiment shows that such attacks would necessarily be illegal under public international law [pp 8:347f.]. But despite the dramatic contrast between a ‘rubber stamped’ incorporation of the provision against war crimes into public international law, and the total re-orientation of the former understanding of a ius ad bellum, both types of rights concern states’ external liberty in a way that resembles the ‘innate’ right of individuals. They only concern the interaction of states, disregarding the use of and command over external territory.
(2) On the other hand, by the phrase “anything external that is mine or yours which states can acquire or retain by war,” Kant refers not exclusively to states’ exercise of their external freedom vis-a-vis each other, in the sense that Ripstein analogized with an individual’s freedom of action. Kant also refers to what states can externally control – in the language of the Doctrine of Right’s sections on Private Law, their external meum et tuum [dr 6:237]. Let us treat the ‘acquisition’ part of “acquire and retain” first. Which cases does Kant envisage? Just as all claims to future acquisitions of other states’ territories will be unlawful already under private international law,18 and can generate no regular ‘provisional’ title, some past acquisitions will have been unlawful in the same way, and constitute factual dominion, but not blamelessly acquired possession. In some cases, another state (in the sense of “a union of a multitude of human beings under law”, [dr 6:313]) will have been there first, and therefore will have had a comparatively better claim to continue governing the people in the area. Annexing other states’ territory through war will therefore not deliver a pro tanto claim of rightful dominion – it is ruled out under natural international law as a matter of ius post bellum [pp 8:346, dr 6:348], and will therefore not amount to ‘provisional’ dominion in the technical sense introduced earlier, as unilateral but blameless first acquisition. Thus Kant in §61 dr appears be using a broader understanding of the move from ‘provisional’ to ‘conclusive’ rights, to include blameworthy acquisitions: What states have de facto acquired through war (and thus have at their disposal ‘provisionally’, in a weakened sense of ‘provisionally’), needs to be subjected to a process of ratification or rejection in turning all states’ claims into lasting public international law. Any argument to transform command over territory in the process of establishing a global public international legal condition would therefore either need to invoke the lack of determinacy and assurance of (internal) holdings, or would have to bring additional arguments of rectificatory justice to bear against past unlawful action.
If we include aspects of rectificatory justice, triggered by disregard for provisional ownership claims in the state of nature, in the transformation of international law from natural to positive law, we need to be aware that we, as interpreters, are largely on our own, as Kant gives very little guidance on post-war restitution. The literature is split into those who think that for Kant, unlawful acquisition of previous dominion is permanent,19 and those who think that entitlements to dominion may need to be scrutinized in the process of transformation of natural to public international law, or under public international law once that condition has been realized.20 All arguments deriving revisionist claims from past unlawful annexation of the territory of another state will be controversial, given Kant’s commitment, in Preliminary Article 1, to reducing causes for future wars [pp 8:342], but this does not rule out that such claims may legitimately be raised before or during the transition to a universal association of states, or in the jurisdictional institutions this association will establish. One clear case of restitutive obligation is the return of unlawfully acquired dominion that had been bought and sold, inherited, gifted, married away, etc. In the Preliminary Articles toward Perpetual Peace, Kant insists that before the Definitive Articles are to take hold, states need to restitute even bona fide acquired territories to their peoples such that “the freedom of certain states” is restored [pp 8:347].
(3) However, the very fact that Kant includes ‘retaining’ territory among the activities that need to undergo (trivial or non-trivial) transformation from provisional to conclusive international law, suggests that the relationship between a state and its current territory may also only amount to an at least pro tanto entitlement. If Kant had focused exclusively on the case of annexation and its defense post bellum, he could have said “acquire and retain,” not “acquire or retain.”21 Some of the territories to be ‘retained’ will not have been acquired through war, but will nevertheless stand in need of states’ being prepared to defend them through war in order to ‘retain’ them. In such cases, the relation between a state and all land that it could ‘retain’ through war is provisional not in the modified sense resulting from annexation through war, but also in the original, terminologically precise sense of unilateral but blameless first acquisition. If such possession is only provisional, Ripstein’s ‘analytic’ reading of states’ command over their own territory, although possibly true for the state of nature among states, i.e. the state of private international law, must be wrong as a claim about the final form of a rightful world order. Just like in the individual case, a strong transformation of states’ retaining full dominion over their territory (and therefore exercising border control) within international law is on the cards. Remember, again, that it may be of the ‘trivial,’ ‘rubber stamping’ kind, which would not however make it ‘analytically’ true that states’ relations to their territory are like a person’s to its body for matters of public international law. I conclude that the transition from provisional to peremptory international law involves three distinct transformations: from states’ indeterminate external freedom to external freedom determined (as in ius in bello and ius ad bellum); from states’ unlawful acquisitions to their lawful holdings of territory (as a matter of ius post bellum restitution in natural and positive international law); from states’ provisionally lawful holdings to their conclusively lawful holdings of territory (as a matter of omnilateral assignment in the transition to positive international law, or within positive international law itself). The second and third cases suggest that in determining the peremptory form and content of international law, we need to consult two separate grounds of territorial claims advanced: whatever can be invoked for backward-looking rectification or compensation for inauthentic claims to provisionality (historical legitimacy), and whatever can be marshalled in a forward-looking transformative perspective to make good on truly provisional claims (transformational, or ‘redemptive’ legitimacy, as ‘redeeming’ provisional claims). The former cases are the results of earlier non-compliant, non-rightful action, while the latter claims also arise in the absence of non-compliance. I now leave international law behind and turn to cosmopolitan law to attempt and impose a similar taxonomy on it. I will treat the former, non-ideal cases next (iii.), and look at the latter cases, those of ideal theory, later (iv.)
III Cosmopolitan Law and Historical Violations
Cosmopolitan interaction takes place between states and non-state entities (individuals or non-state peoples), or among such non-state entities, and cosmopolitan law is to regulate an area in which conflicts from annexation and appropriation arise. A central motive for Kant’s conceptual innovation in introducing the notion of “cosmopolitan law” is that European nations base their claims to colonization on prima occupatio wherever they think the state of nature reigns. Europeans believe that the conflict between indigenous populations and the European new arrivals can be described as a clash resulting from first acquisition: the new arrivals claim to have established provisional property in the respective territories under their control, which the original residents are bound to respect. Europeans treat non-European states as “countries belonging to no one, since they counted the inhabitants as nothing” [pp 8:358], which entails that they can rightfully mobilize force to establish dominion over indigenous populations.
There exists a debate in Kant scholarship whether the colonizing nations falsely claimed to have established original claims to private property, while non-state peoples had already established provisional property claims to their territory, or whether it would be more apt to say that European nations have been able to establish provisional property claims, albeit unlawfully, through prima occupatio, since indigenous populations had not yet introduced a specific private property regime.22 Regardless of how this debate plays out, it seems that we need to distinguish three different cases of colonial acquisition: a) foreign acquisition based on disregarding the statist character of the territory in question, b) foreign acquisition that disregarded the fact that the property had already been appropriated by a non-state people, and c) acquisition that would otherwise qualify as bona fide original acquisition, but where such rights to acquisition had been unlawfully claimed by foreigners.
In all cases, considerations of historical justice seem to demand some reaction, some sort of rectification or compensation, analogous to the restoration of the freedom of the people of a gifted, sold, or inherited territory. But depending on the case, the grounds for transforming natural or private cosmopolitan right to public cosmopolitan right will be different ones. a) The first case is only on the surface a problem of cosmopolitan law since it constitutes a straightforward violation of international law and needs to be dealt with under rectificatory international law, as we discussed in the preceding section, or even (if such a branch should exist within Kantian public international law) criminal international law.23 It is not clear, though, whether any individual claims can be derived directly from such violations. Given that claims for restitution or compensation arise from the violation of collective claims, it is more plausible to see European nations as owing non-European states they conquered and colonized under false pretenses. b) The second is one in which non-state peoples, though not subjects to or claimants within international law, had already raised bona fide provisional property claims, as in the case of the original inhabitants of North America, claims that are then denied in colonial conquest. This is the kind of case that Anna Stilz and James Tully have focused on. While Stilz focuses on expropriations of prior possession, Tully understands the systematic expropriation of Native Americans in Canada and the u.s. as perverse attempts at strong non-trivial transformations of prior provisional property allocations, in that the European conquerors discontinued practically all original claims and either expropriated them in fraudulent transactions in the move toward a public legal condition, or refused to recognize them in the public property regime of the resulting public legal condition.24 Tully’s reading makes clear that besides the direct first-order evils of conquest and dispossession, there are second-order evils to be addressed in that large-scale defective transformations of property claims took place, discrediting the legitimacy of the resulting property orders. Kant’s uncompromisingly anti-colonial stance seems to entail that he would not accept such transformation as ‘conclusive’ property regimes. c) The final case is the potentially bona fide claim to foreign first acquisition in the annexation of unowned “white spots” within the territories of states or non-state peoples, which Kant attempts to rule out under cosmopolitan law despite its apparent parallel to individual processes of unilateral annexation under private natural law. Kant’s assertion that cosmopolitan right ‘shall be limited to hospitality’ [pp 8:357] is to deny the rightfulness of such acquisition, independently of any rivalling antecedent (provisional) claims to the territories in question, and even where such annexation is coupled with the intention to start a joint state-building process [dr 6: 266].
Although Kant’s passages on cosmopolitan law do not provide clues as to how he thought we should react to violations (besides immediately discontinuing the cruelties of colonial appropriation), it is not implausible to hold that, in parallel with his treatment of violations in international law in the Preliminary Articles, he thinks restoration of or compensation for at least some non-blamelessly acquired territories is mandated. No conception of what we owe to the claimants of cosmopolitan right can be complete without incorporating the dimension of historical justice, but it is hard to specify the material obligations that flow from it. Since all discussion of such restoration or compensation will have to take into account structural relations, but also the details of concrete historical violations, I put them aside here as too dependent on empirical information as to allow any general conclusions.
IV The Move from Provisional to Conclusive Cosmopolitan Law
Let us now leave the discussion of historical violations, comprising unlawful acquisitions and defective transformations, behind, and focus on the transformation of blameless provisional first acquisition. It seems that in the best case, what can be mustered on the part of peoples or states25 confronting cosmopolitan claimants under natural law is that they have unilaterally, but provisionally rightfully, drawn up borders that now interfere with the claimants’ freedom of movement. Since claimants have no border-crossing rights to acquire territory through prima occupatio under natural cosmopolitan law, states are not interfering with any such entitlement. In addition, Kant’s anti-colonialism does away with any further, second-order claims that could be thought to arise from the clash of personal movement and territorial stakes. Given that in the international arena, in contrast to the domestic one, no coercive entitlements to impose a civil condition on each other (in order to resolve and administer all private law conflicts) exist, a fortiori the cosmopolitan claimants will not have any such entitlements against the receiving state.
What are the receiving state’s obligations under this ideal-type, historically blameless scenario? Authors have based their interpretations on the sections on Cosmopolitan Right in the Third Definitive Article, pp, and §62, dr, where Kant postulates a number of titles, for example the right to visit (in contrast to a right to stay), and the right to attempt to communicate across borders, including the right to offer one’s products for trade or to offer oneself for community or membership (“present oneself for society”, [pp 8:358]). However, not least the exceptions he discusses (China and Japan ‘wisely’ closing their territories to trans-border economic exchange, and thereby also for religious and cultural exchange) make it necessary to ask how far-reaching those titles are, and how their extension can be determined. But while interpreters have been clear about the need to institutionalize cosmopolitan law in a global legal order,26 that is, the need to move on from natural to positive law, they have read passages on natural or private cosmopolitan right as the definitive statement of the extension of cosmopolitan entitlements, disregarding their potential development in parallel to the transition to public international law. Even where congenial ‘Kantian’ elaborations of cosmopolitan right are suggested, those have not been proposed as entailed by the necessary transformation of natural or private cosmopolitan law to public cosmopolitan law, but “developed” from what Kant says. For instance, where states reject, as a matter of course, the applications to enter their territory from specific groups of people yet admit others, interpreters have read this as incompatible with natural cosmopolitan law.27 In contrast, if states close down their borders altogether for communication and trade, on the basis of unpleasant past experience, this has been read as compatible with natural cosmopolitan law.28 But it is hard to see how such precise determinations can be made universally convincing, or how conflicts, for example about legitimate restrictions on attempts at trade or border-crossing movement, could be settled. In this situation, it makes more sense to understand the positions “developed” from Kant in the secondary literature not as rivalling interpretations of natural cosmopolitan law, but as arguments to be considered in its transformation toward a global public legal condition. If an at least weak transformation from private to public law is necessary already in domestic contexts, where questions of determinacy and assurance require a state-wide re-interpretation of people’s claims to external freedom, then an at least weak parallel transformation appears to be required for the global re-interpretation of their cosmopolitan rights vis-a-vis the rights of the receiving states. Furthermore, where cosmopolitan law governs property-related issues, given that provisional property-related claims need to undergo a strong transformation in domestic law, then a strong transformation appears required for cosmopolitan law as well. In the remainder of this section, I will presuppose that such a transformation is required, and address the question of what kind of transformation, weak or strong, is to be expected in the move from bona fide provisional to peremptory cosmopolitan law.
There exists now near consensus in the literature that the normativity of cosmopolitan right cannot be derived from individuals’ claims to liberty alone, but that it draws substantively on the idea of an original ‘possession in common’ of the Earth [pp 8:358; cf. dr 6:352].29 The notion of original common ownership of the Earth’s surface reflects the fact that humans are physical extended beings that will claim, so to speak, a place to stand on. Their right “to be where nature or fate (without their will) has placed them” [dr 6:262] does not depend on any prior consent from others, but follows from the fact that “[a]ll human beings are originally in rightful possession of the earth” (ibid.). As physical beings, they cannot “disperse infinitely” on a bounded whole, but must “put up with being near one another.” But it is not only their inadvertent presence at some place or other, or their non-voluntary existence on Earth, that is protected by the original common ownership figure. Kant also says that the attempt to actively seek commerce (in the wide sense of seeking interaction or community) likewise follows from the fact that “the right to the earth’s surface … belongs to the human race in common” [dr 8:358, emph. i.o.]. The beneficiaries of those claims are all human beings as inhabitants of the Earth, or all “earth dwellers”:30 “Nature has enclosed them all together within determinate limits”, such that “possession of the land, on which an inhabitant of the earth (Erdbewohner) can live, can be thought of only as possession of a part of a determinate whole” [dr 6:352]. Now it could be objected that the category of an “earth dweller” or “Erdbewohner” is strictly speaking superfluous since what it establishes cannot go beyond what is owed to human beings anyway. Against such deflationist readings of the “earth dweller” category, it is worth pointing out that the figure ensures that the set of bearers of cosmopolitan right is not identical to the community of right-bearing individuals, nor with the set of all possible humans. While the Introduction to dr identifies the bearers of an “innate” right to internal meum et tuum as beings with rational capacities (“by virtue of their humanity”, dr 6:237), usually explained as the capacity to direct their behavior through practical reason, such beings would need to be situated on Earth in order to claim cosmopolitan right. In contrast to “Erdwesen” or “Erdbewohner,” the corporeal rational beings of other planets, although potential claimants of rights and subjects of legal orders, are not, in idea, members of this original community of land.31
In the literature, the founding role of our predicament as earthlings, and the potentially corrective role of the idea of original common possession, have been addressed in wildly diverging ways. Where they have been taken up in a material sense, they have been read as triggering a coercive global state, guaranteeing a worldwide sufficientarian distribution of material goods.32 Where they have been discussed in a more formal and restrictive sense, they have been used to remind us of the fact “that humans both need and are able to get to grips with the fact that they share the earth in common.”33 In a close textual reading, Jakob Huber has decisively criticized the idea that cosmopolitan entitlement could be based on human need. Yet in reconstructing cosmopolitan relations as relations of “possible physical interaction” [dr 6:352], Huber at the same time reduces them to relations of external interaction between extended beings, and divorces them from their original connection to the problematic mode of acquiring property. For Huber, relations under cosmopolitan law are “‘external’ (as located in time and space), but not property-mediated.”34 But if Kant is not concerned with the unilateral acquisition of property, then the transition from natural to public cosmopolitan law involves only weak transformation.
Is the community of Earth dwellers exclusively a community of co-existence of extended bodies, as Huber suggests, or is it also a community of use of external objects? There are sufficient indications in Kant’s writings that it is both. The idea of original common ownership is intimately connected with the privatization of territory. In order for the history of unilateral acquisition to unfold, and to enable people to legitimately make exclusive use of parts of the Earth, Kant believes we need a normative starting point, and finds it in the idea of common ownership. Prima occupatio is founded in the “innate possession in common of the surface of the earth and on a general will corresponding to it” [dr 6:250]. Both cosmopolitan right and unilateral acquisition thus go back to the same root: the conditioning of all annexation to its compatibility with a general will. Cosmopolitan right just serves to remind us that it is not only compatriots to whom the generality of the general will needs to extend. The very problem to which cosmopolitan right is the answer would not arise were it not for the fact that Earth dwellers claimed exclusive use of territory: Under what conditions is it legitimate for inhabitants of the Earth to impact upon others in the acquisition of territory, disregarding the boundaries of state and private territories? All unilateral drawing of territorial lines in order to claim exclusivity of use, from domestic acquisition to state dominion, is therefore dependent on its redemption as compatible with a “general,” i.e., in the case of cosmopolitan right, omnilateral will.
However we choose to implement the general will requirement within an institutional framework, it entails that cosmopolitan law, in order to become public law, needs to undergo a strong transformation as well as a weak one. The remaining important question is: Will a strong transformation be a trivial transformation or not? Will public cosmopolitan right contain substantively broader, or different claims for individuals?
As an illustration, consider the parallel transformations of private to public law, in the domestic as well as in the international case. In the domestic case, the civil condition gives rise to welfare rights for the members of a politically unified people that did not exist in the state of nature [dr 6:326–7], and it may be tempting to apply this republican dynamic to the global context as well. Given that cosmopolitan community is not to be envisaged in the form of a world republic, however, we can rule out that such rights will arise from the transformation of natural to public cosmopolitan right. Let us examine the international case next. In the move from private to public international law, some natural rights of states will be dropped and others taken up: Standing armies must be dismantled, military interventions that meddle with neighboring states’ constitutions stopped, as well as the gifting, marrying, or buying of political dominion reversed. Although such practices do not appear to violate any natural rights of states, they must be rejected as obstacles and incompatibilities in the transformation to public international law [pp 8:344–7]. In the same sense, states must reject their natural ius ad bellum in entering a league of nations; they are especially barred from waging preventive war [dr 6:344; pp 8:384], see above, sec. ii). Could it be the case that natural visiting and communication rights need to be screened for obstacles toward transformation, and contradictions they might cause in a global civil condition? Kant has already singled out the case of free trade as problematic, in the cases of China and Japan, as potentially connected with aggression, [pp 8:359]. Not all activities and practices that are protected under natural law will need to find protection in a global civil condition, but we would not expect natural cosmopolitan rights claims of individuals to be abrogated, but rather to be confirmed, determined, and assured under omnilateral consent. Given that the practices of visiting, communicating, and applying for community are uses of external freedom and do not depend on prior acquisition of property, they do not in themselves give cause to strong transformation. Things are different for the corresponding claims of states and their unilateral demarcations of territory. Since cosmopolitan law relates states and non-citizens, we need to ask whether the drawing of borders itself is to undergo a strong transformation.
Despite the fact that natural cosmopolitan right contains, in its provision that claimants should not have to fear “destruction” (“Untergang”, [pp 8:358]), a ‘sufficientarian’ element, it would be wrong to start thinking about strong transformation from the perspective of people’s needs.35 Beyond the humanitarian dimension of not letting people “perish,” it would be a mistake to start out from the formulation of redistributive duties, since such duties are unconnected to Kant’s use of the idea of original common ownership. In contrast, and taking our cue from Huber, we should start from the implications of “possible physical interaction,” i.e. relations on a spatial surface. In contrast to Huber’s eclipse of property-mediated relations between Earth dwellers, however, the key to a transformative reading of Kant’s cosmopolitan right seems to lie in the fate of territorial claims, that is, in the question of under what condition unilaterally imposed obstacles to movement, communication, and community would have to be transcended. Recall that our reading of the idea of original common ownership focused on two elements simultaneously: on the provisional legitimacy of unilateral and exclusive claims to territory, and on the use of the surface of the Earth for travel and communication. These two elements are in direct competition with each other, as all unilateral acquisitions, but especially the statist control of territorial boundaries, turn surface movement into trespass.36 The claiming of provisional rights to property not only interferes, as is well represented in interpretations,37 with other people’s possible future acquisitions, but it also narrows or obstructs the common infrastructure for future movement, commerce, or community. Rather than thinking about which new distributive prescriptions will be triggered in moving from provisional to conclusive cosmopolitan right, we should wonder whether a strong transformation would not require a new understanding of the consequences the drawing of state borders can have for that infrastructure. A new conception of freedom of movement could demand, beyond what Kant has already carved out as a natural cosmopolitan right to establish contact, both “access” and “entry” rights [pp 8:359] for all, in and through all states. Such a transformation would first of all offer an amendment to Kant’s own account of natural cosmopolitan right, at least if, as has been argued, it entails that only non-voluntary visitors must be admitted under the right of hospitality.38 If, under public cosmopolitan law, such visiting rights could be made conclusive (think of them as universal visa rights), they could still not be converted into unilateral rights of settlement, and thus presumably not make visitors’ claims permanent, as suggested by Han. They would respect the integrity of private spaces, as suggested by Gerhardt, where those do not obstruct movement and communication, but present an obstacle to the closing down of public spaces and avenues. A post-provisional reading of the right to visit, to attempt commerce, and to apply for community would therefore establish the need to open up again the routes of migration that have been closed down in the aftermath of the 2015 crisis, yet would not convert the claims to presence of cosmopolitan claimants into rights of settlement.
v Determining Cosmopolitan Right: A List of Factors
In the course of this paper, I have tried to establish a framework consisting of four distinctions that need to be taken into account to determine the final extension of cosmopolitan law. The first distinction to be aware of is that between two stages of cosmopolitan entitlements, natural and public, or provisional and conclusive, where natural entitlements may or may not persist in transformation from the state of nature to the state of a global legal condition, and new ones may or may not be introduced. The next distinction lies in the type of transformation – weak or strong – which follows up on that between exercises of internal or innate, and external or acquired meum et tuum, that is, between the movement of our bodies and our claims to exclusive uses of external objects. I have argued that the move from private, or natural cosmopolitan law to public cosmopolitan law does not generate more, or different rights than are already there in the state of nature between states and cosmopolitan claimants, but that a strong transformation, following up on the unilateral annexation and control of state territories, is to trigger a re-evaluation of the various territory-related claims under natural law. The third distinction is that between trivial and non-trivial transformations. I have argued that a non-trivial transformation of natural cosmopolitan law is necessary, but instead of claiming that a redistribution of provisional property claims is on the cards, I have pointed toward the dismantling of obstacles to movement and communication, as against unilateral attempts to close down their venues and avenues. Finally, strong transformations of cosmopolitan law toward a conclusive legal order can be based on two different kinds of reasons: redemptive or rectificatory according to the type of provisionality (blameless or otherwise) that can be claimed for current possessions.39 Volker Gerhardt is correct to insist, in his radio interview, that the dimension of historical justice cannot be ignored in an account of the complete extension of cosmopolitan right. Equally importantly, far-reaching claims to distributive justice concerning blameless first acquisitions cannot be ruled out.
But setting up a framework of relevant normative dimensions does not give us a substantive answer to the question of “what Kant would have said in the refugee crisis.” Huber is right to say that no interpretation of cosmopolitan law in Kant should yield “concrete prescriptive recommendations,” and ought instead to aim at substituting a “certain way of framing the problem.”40 Yet his account does not assemble the categories to address all facets of the problem. The matrix of transformational features presented here is to go some way to providing that frame. Not only ought we not try and read definite prescriptions out of natural law, Kantian or otherwise, but in the absence of a much more detailed account of what it takes to transform natural into public cosmopolitan law, and how to identify and evaluate the historical information going into it, we cannot confidently assume to know “what Kant would have said.” This is not just to make the obvious point that all legal claims need to be established in republican domestic decisions, or in egalitarian international contractual commitments. It is also to say that the processes of instituting positive trans- and international law must reflect the different strata of the transformative argument.
Byung-Chul Han, „Wo die Wilden Kerle wohnen. Wenn Hilfesuchenden die Gastfreundschaft verweigert wird, droht Europa die Barbarei. Was Immanuel Kant zur Flüchtlingsdebatte zu sagen hätte“, Die Welt, Sept. 8, 2015. My transl. pn.
I quote Kant from the Academy Edition, giving vol. and page nos. I generally follow Mary Gregor’s translation in Kant’s Practical Philosophy, Cambridge: Cambridge University Press, 1996, but have in some cases diverged from it.
Volker Gerhardt, „Was Immanuel Kant zur Flüchtlingskrise sagen würde,“ Interview with Thorsten Jantschek, Deutschlandradio Kultur, Sept. 27, 2015. Audio at http://www.deutschlandradiokultur.de/volker-gerhardt-im-interview-was-immanuel-kant-zur.2162.de.html?dram:article_id=332192, last accessed Nov. 19, 2015.
Quoted from Christian Geyer, „Flüchtling Kant: Ein Bleiberecht für alle?,“ Frankfurter Allgemeine Zeitung, Sept. 29, 2015, my translation, pn.
In translating the term “Weltbürgerrecht,” I use both “right” and “law”: I speak of “Law/law” when talking about the systematic doctrine (capitalized) and the ‘objective’ norms it contains (not capitalized). When using “Right/right,” I exploit the fact that Kant uses the term also to refer to (the doctrine of) subjective claims of individuals.
Allen Wood, “The Final Form of Kant’s Practical Philosophy,” in Kant’s Metaphysics of Morals: Interpretive Essays, ed. Mark Timmons (Oxford: Oxford University Press, 2002), 1–22.
Ingeborg Maus, Zur Aufklärung der Demokratietheorie. Rechts- und demokratietheoretische Überlegungen im Anschluss an Kant (Frankfurt/M.: Suhrkamp Verlag, 1992), 153.
Reinhard Brandt, „Das Erlaubnisgesetz, oder: Vernunft und Geschichte in Kants Rechtslehre,“ in Rechtsphilosophie der Aufklärung. Symposium Wolfenbüttel 1981, ed. Reinhard Brandt (Berlin: de Gruyter, 1982), 233–285, esp. 263.
B. Sharon Byrd, “Intelligible Possession of Objects of Choice,” in Kant’s Metaphysics of Morals. A Critical Guide, ed. Lara Denis (Cambridge, Cambridge University Press, 2010), 105–121, esp. 110.
See most recently Merten Reglitz, “A Kantian argument against world poverty,” European Journal of Political Theory, online first, 2016: doi: 10.1177/1474885116662566. Asger Sørensen has introduced a further distributive issue, the unexplored material dimension of cosmopolitan law, arguing that “within the current social reality – i.e. capitalism – one could argue that precisely this apparently modest idea of cosmopolitanism functions as an ideological back-up for those already privileged by the present societal conditions, i.e. those with means of earning money and accumulating capital.” See Asger Sørensen, “Cosmopolitanism—Not a ‘Major Ideology,’ but Still an Ideology,” Philosophy and Social Criticism 42, no. 2 (2016): 200–224, esp. 210.
My understanding of a transition to public international law differs from interpretations that assert an internally progressive character within public international law. Claudio Corradetti has argued that Kant conceives of the international order as inherently transformative, and progressively “cosmopolitan,” once the transition from private law has been made. Although he makes a convincing case for the internal malleability of public international law, he does not say whether cosmopolitan right in the terminological sense should also be conceived of as subject to such transformation. Claudio Corradetti, “Kant’s Legacy and the Idea of a Transitional,” Jus Cosmopoliticum, Ratio Juris 29, no. 1, (2016): 105–21.
To avoid misunderstanding, I should say that I am not here referring to ‘private international law’ in the sense of international private law (Internationales Privatrecht), but to ‘privates Völkerrecht.’ For a more extended treatment of private vs. public international law, see Oliver Eberl & Peter Niesen, ed., „Kommentar,“ in Immanuel Kant: Zum ewigen Frieden und Auszüge aus der Rechtslehre (Berlin: Suhrkamp Verlag, 2011).
For a brief discussion, see Peter Niesen, “Restitutive Justice in International and Cosmopolitan Right,” in Kant and Colonialism, ed. Katrin Flikschuh and Lea Ypi (Oxford: Oxford University Press, 2014), 90–108, esp. 174. For a more thorough discussion, see Eberl/Niesen, „Kommentar,“ 144–6, 302–3. For the view that Kant changed his mind on preventive war, see B. Sharon Byrd & Joachim Hruschka, „Kant, das Recht zum Kriege und der rechtliche Zustand im Verhältnis der Staaten zueinander,“ Archiv für Rechts- und Sozialphilosophie 2 (2008): 70–85, 71.
There is one exception Ripstein does not consider. An uninhabited and unused territory which is not immediately adjacent to territory used by another sedentary people both can and may be annexed. This is “not open to doubt” [dr 6:353]. Kant discusses this exception under the heading of Cosmopolitan Law, dr § 62, and insists that an additional non-fraudulent contract between annexers and neighboring people(s) is necessary for the legitimacy of annexation in cases where the adjacent peoples are nomads. Ripstein’s claim should therefore be amended in the sense that in relations between states, i.e. in international law, states are in most cases necessarily in possession of their territory, but that this does not hold vis-a-vis all uninhabited areas.
See Arthur Ripstein, “Kant’s Juridical Theory of Colonialism,” in Kant and Colonialism, Flikschuh & Ypi, 145–169, 146, 152.
In the original, he speaks of “alles durch den Krieg erwerbliche oder erhaltbare äußere Mein und Dein der Staaten,” [dr 6:473 (§ 61)] emphasis pn.
For the first option, see Anna Stilz, “Provisional Right and Non-State Peoples,” in Kant and Colonialism, ed. Flikschuh & Ypi, 197–220, esp. 204. For the second option, see Peter Niesen, “Colonialism and Hospitality,” Politics and Ethics Review 3 (2007): 98.
For doubts about the credentials of international criminal law from a Kantian Perspective, see Ingeborg Maus, Menschenrechte, Demokratie und Frieden, (Berlin: Suhrkamp Verlag, 2014).
Such an against-the-grain interpretation of Kant’s transformative legal doctrine is particularly compelling to readers sensitive to the Lockean tradition of justifying colonialism. James Tully, Philosophy in a New Key, Vol. ii: Imperialism and Civic Freedom (Cambridge: Cambridge University Press 2008), 127–165.
I follow Kant here in using “states” and their “peoples” synonymously (“A state is a union of a multitude of human beings under laws,” [dr 6:313]). States and their peoples therefore have the same duties under law vis-a-vis non-citizens.
Pauline Kleingeld, Kant and Cosmopolitanism, The Philosophical Ideal of World Citizenship (Cambridge: Cambridge University Press 2012), 86–91.
Kleingeld, Kant and Cosmopolitanism, 78–9; Seyla Benhabib, The Rights of Others. Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004), 25–48; Garret Wallace Brown, Grounding Cosmopolitanism. From Kant to the Idea of a Cosmopolitan Constitution (Edinburgh: Edinburgh University Press, 2009), 59–66.
Katrin Flikschuh, Kant and Modern Political Philosophy (Cambridge: Cambridge University Pres, 2000); Kleingeld, Kant and Cosmopolitanism, 85; Niesen, Colonialism and Hospitality. But see Benhabib, The Rights of Others, 33–4, for a more skeptical position.
Kant, Anthropology from a Pragmatic Point of View [Anth 7: 331–33]. See Peter Szendy, Kant in the Land of Extraterrestrials: Cosmopolitical Philosofictions (New York: Fordham University Press, 2015).
Reglitz, “Argument against World Poverty,” 14. Mathias Risse has reconstrued the idea of original common possession in Hugo Grotius’ work as a sufficentarian conception, sans world state. See Mathias Risse, On Global Justice (Princeton: Princeton University Press, 2012).
Jakob Huber, “Cosmopolitanism for Earth Dwellers: Kant on the Right to be Somewhere,” Kantian Review 22, no. 1 (2017): 1–23, 20.
This point is also made by Alice Pinheiro Walla, “Common Possession of the Earth and Cosmopolitan Right,” Kant-Studien 107, no. 1 (2016): 160–178, esp. 174.
For an unflinching diagnosis of this predicament, see Ayelet Shachar, “New Border and Citizenship Constellations: Implications for Law and Justice,” ms 2016.
As noted above, Kant introduces ‘provisionality’ of rights as being exclusively concerned with property holdings, i.e. the ‘acquired’ dominion over external objects. Yet there is no reason in principle not to apply the category of rectificatory justice to violations of ‘innate’ freedom as well. But this would be a matter for another paper.