Kant s Cosmopolitan Right and the Right to Exclusion

Transcription

1 Kant s Cosmopolitan Right and the Right to Exclusion ECPR General Conference Sciences Po Bordeaux, 4 7 September 2013 Karoline Reinhardt Draft. 1

2 1. Introduction In recent years there has been an ongoing debate in political philosophy and in the field of applied ethics on questions concerning citizenship and migration. In this debate as well as in others Kant is often perceived as a key figure of cosmopolitanism. In the contemporary debate on migration the term cosmopolitan refers to positions that argue in favor of relatively open, or porous borders, as a consequence of equal concern for all human beings. On this perspective, with regard to questions of citizenship and migration, the moral equality of all humans translates in political equality also across national borders. Restrictions on migratory movements should only be allowed if substantial reasons against free movement occur. Kant is understood as providing a normative basis for this kind of cosmopolitan reasoning. It is obvious that Kant himself did not argue in favor of open borders not even of porous borders. Kant is, however, often understood as only falling short of his own moral universalism when discussing questions of international law. In any case, he has introduced a category, or a sphere of right, that is concerned with the rights of individuals in relation to foreign states and, thus, touches upon questions of migration as well: the cosmopolitan right (Weltbürgerrecht). 1 The cosmopolitan right limits the sovereignty of states with regard to migration and, thus, gives rise to obligations irrespective of national borders. 1 The translation of the German term Recht is notoriously difficult. Recht is not fully captured by the terms law, right, justice, or legislation, but can be used in these ways. Katrin Flikschuh pointed out that: The term Recht has connotations of a mathematical exactitude missing from the common-law tradition [on which the Anglo-American philosophy of law tradition is based], with its reliance on precedent and interpretation and that Kant s Rechtsbegriff is distiguished from current conceptions of justice by the claim to a priori validity (2000: 11). This seems to be a further good reason to follow Mary Gregor s convention of translating Recht as Right and not as justice. 2

3 In the literature on Kant s cosmopolitan right we find three distinct positions concerning the justification of this right (Eberl/Niesen 2011: 260ff.). According to the first interpretation, the cosmopolitan right can be deduced from Kant s conception of the one innate right (Kleingeld 1998, Benhabib 2004). The second interpretation claims that the cosmopolitan right is in fact a right to membership in a global political community (Held 1996). The third interpretation, however, suggests that the cosmopolitan right is based on certain observations about the empirical conditions of the human existence in particular the sphericality of the earth (Flikschuh 2000). Since Kant is often understood as a key figure in the emergence of the kind of cosmopolitan thinking that leads us to a conception of relatively open borders, the question whether we can find any normative basis for exclusion in Kant s work has frequently been neglected. In this paper I will argue, however, that Kant s cosmopolitan right can in fact be interpreted in a way that allows for a normative basis of exclusion. Since the question whether there is a normative basis for exclusion depends on how the cosmopolitan right is justified in Kant, I will examine the three possible interpretations in detail. I will show that, though, there is in fact evidence in Kant for all of the lines of interpretation mentioned above, the evidence that speaks in favor of a reading of the cosmopolitan right along the lines of the third interpretation might be regarded as being most plausible. In addition, this interpretation leaves room for refuge and asylum understood in a very broad way and it also leaves room for the right of political communities to exclusion. 3

4 In fact, this seems to be at the core of Kant s formulation of the cosmopolitan right, or so I will argue. In the next section I say a little more on the content of Kant s cosmopolitan right before I turn to the question of the possible interpretations concerning the justification of the cosmopolitan right in section 3. In section 4, I conclude with some implications the discussion of the possible justification of the cosmopolitan right has for migration and the normative basis for exclusion. 2. Kant s Cosmopolitan Right 2.1 Migration in Kant s Writing Kant touches the topic of migratory movements in two contexts: famously in his discussions of the cosmopolitan right (Weltbürgerrecht) in the third definitive article of Perpetual Peace and in the Doctrine of Right; and also in the context of the right of a state (Staatsrecht), where Kant discusses the relation of a citizen to his native land and to foreign countries (MM, 6:637f.). 2 The sections from the Doctrine of Right are rarely discussed. I think, however, that keeping them in mind might be quite helpful for an appropriate interpretation of Kant s cosmopolitan right. 2.2 Cosmopolitan Right in Perpetual Peace and the Doctrine of Right In Perpetual Peace, written in 1795 under the impression of the Treaty of Basel, Kant develops a concept for peace among nations that had a strong impact on our thinking about peace today. Following the example of a traditional peace treaty, Perpetual Peace is arranged in preliminary articles, which contain the necessary conditions of 2 On gender-inclusive language in writing about Kant see Kleingeld

5 peace, and definitive articles sketching the sufficient conditions for establishing a peace order. Finally, there are also two supplementary articles and an appendix. The first supplement formulates a guarantee for perpetual peace and the second is - again following the example of actual peace treaties but now also satirizing it - a secret article that contains Kant s demand for publicity. The third definitive article is of course of importance for us. After discussing the constitution of states in the first definitive article; and demanding that every state shall be republican (PP, 8:349f.); and introducing the idea of a federalism of free states regarding the sphere of the right of nations in the second definitive article, Kant introduces a new sphere of public right in the third definitive article: the cosmopolitan right. The cosmopolitan right is defined as the right of citizens of the world, insofar as individuals and states, standing in the relation of externally affecting one another, are to be regarded as citizens of a universal state of mankind (PP, 8:849 n.). The cosmopolitan right, thus, addresses states and individuals. Individuals are not addressed as citizens of a particular nation state but rather as citizens of the earth (ibd.) and not in their relation to their native country but to a foreign state. The cosmopolitan right, thus, is concerned with interaction (Verkehr) across borders. Kant also employs the term commercium in his discussion of the cosmopolitan right in the Doctrine of Right. It is, however, important to emphasize that the cosmopolitan right is not concerned with commercial interaction alone, but also with pilgrimage, 5

6 travel, migration and all kinds of academic exchange. 3 A further aspect of the cosmopolitan right that is easily overlooked is that it deals with voluntary as well as involuntary interaction. The cosmopolitan right applies to somebody who wants to establish trade relations as well as to victims of shipwreck washed ashore. The fact whether I arrive in a country due to unfavorable circumstances or whether it was my choice to go there, however, has important implications for the duties the foreign country in question has towards me. To spell out in further detail what these implications might be, I now want to take a closer look on the exact phrasing of the third definitive article. The third definitive article reads as follows: Cosmopolitan right shall be limited to conditions of universal hospitality (PP, 8:357). One thing that is striking about Kant s phrasing of the cosmopolitan right in Perpetual Peace is its negative formulation: It is limited to conditions of universal hospitality. The negative and minimal formulation of the cosmopolitan right is motivated by an anticolonialistic impetus: Kant explains at length and with many examples how the behavior of civilized, especially commercial, states has led to the whole litany of troubles that oppress the human race (PP, 8:359). In the Doctrine of Right Kant discusses the question: in newly discovered lands, may a nation undertake to settle (accolatus) and take possession in the neighborhood of a people that has already settled in the region, even without its consent? (MM, 6:353) which is one of the key questions concerning colonialism. In his answer to this 3 On the question of translating Verkehr with commerce see Kleingeld 1998:89. 6

7 question Kant implicitly applies the concept of right (Rechtsbegriff) introduced in the beginning of the introduction to the Doctrine of Right: Right is therefore the sum of the conditions under which the choice (Willkür) of one be united with the choice (Willkür) of another in accordance with a universal law of freedom (6:230). The cosmopolitan right can only be regarded as right, if it formulates a principle according to which one s choice (Willkür) can be united with everybody s freedom of choice. In this light, Kant s answer to the question posed above is not surprising: If the settlement is made so far from where that people resides that there is no encroachment on anyone s use of his land, the right to settle is not open to doubt. But if these people are shepherds or hunters [ ] who depend for their sustenance on great open regions, this settlement may not take place by force but only by contract, and indeed by a contract that does not take advantage to ceding their lands (MM, 6:353). If the settlement is located in such a distance that the people already settling in this territory is not disturbed, the newly arrived are allowed to settle there. If, however, their being there is an infringement on the freedom of the people already there, a specific contract is needed and the conditions of the contract need to be fair. Like the phrasing of the cosmopolitan right, Kant s concept of hospitality is also negative and minimal (Kleingeld 1998: 75). It means the right of a foreigner not to be treated with hostility because he has arrived on the land of another (PP, 8:357f.). The right not to be treated with hostility if one acts peacefully applies to all foreigners no matter if they are in the country voluntarily or involuntarily. The cosmopolitan right is not the right to be a guest (kein Gastrecht). It is merely the right to visit (Besuchsrecht) and not to be treated with hostility only because of one s presence on the territory of a foreign state. In the Doctrine of Right the cosmopolitan right is exemplified as the right of citizens of the world to try to establish community with all and, to this end, to visit all regions of the earth. This is not, however, a right to make a 7

8 settlement on the land of another nation (ius incolatus); for this, a specific contract is required (6:353). The state, however, has the right to reject the visitor, but only if her rejection will not lead to her destruction (Untergang). Here, however, the distinction between a voluntary presence in the country and an involuntary presence applies: If I only try to establish community, I can be turned away. If I am placed there, however, because of circumstances that are not under my control, and if I am forced to stay in the face of imminent danger, the foreign state cannot reject me The Justification of the Cosmopolitan Right Up to the late 1990 s there has been a neglect of the cosmopolitan right in the literature on Kant s Political Philosophy (Kleingeld 1998: 73). This is certainly not true any longer. In recent years there has been quite a vivid discussion on questions related to the cosmopolitan right. Especially in the debate on problems related to migration it got some attention due to Benhabib's discussion of the cosmopolitan right in The rights of Others (2004: 25-48). In this debate, however, Kant is often read as falling short of his own moral universalism in limiting the cosmopolitan right to conditions of universal hospitality. And it is claimed that his moral universalism should in fact have lead him to a position closer to what is now called an open borders position with extensive rights for refugees and asylum seekers as well as an inclusive concept of citizenship. Whether this is plausi- 4 In a draft for Perpetual Peace Kant distinguishes explicitly between voluntary and involuntary interaction: Wer diesen [den Besuch] Willkührlich macht kann allerdings von den Einwohnern abgewiesen aber nicht bekriegt werden der aber unwillkührlich dahin verschlagen wird (ein Schiff das im Sturm einen Nothhafen sucht oder ein gestrandestes Schiffsvolk) kann nicht von den Küsten oder Oase wohin er sich gerettet hat in die drohende Gefahr wieder verjagt noch weniger erobert werden sondern muß bis zur günstigen Gelegenheit der Abkunft daselbst seinen Aufenthalt finden können. (23:173). 8

9 ble or not, is closely related to the question of what is to be conceived as the justificatory basis of the cosmopolitan right. As I have said in the introduction to this paper we find three main positions in the literature on the cosmopolitan right concerning its normative basis (Eberl/ Niesen 2011: 260ff.). In what follows I want to discuss these lines of interpretation one by one and argue in favor of the third interpretation. 3.1 The One Innate Right The first interpretation argues that the cosmopolitan right can be deduced from Kant s conception of the one innate right (Kleingeld 1998, 2012, Benhabib 2004). The one innate right is a right which belongs to everyone by nature, independently of any act that would establish a right (MM, 6:237). It is concerned with what is internally mine or yours, that is to say all my mental and physical faculties. In contrast to innate right there is acquired right for which such an act is required and which is concerned with what is externally mine or yours (ibd.). Kant, then, claims that there is only one innate right and this is the right to freedom insofar as it can coexist with the freedom of every other in accordance with a universal law (ibd.). The idea of the first interpretation is that, though Kant himself does not provide an account that justifies the cosmopolitan right by reference to the one innate right, one can show that he could have developed such an account straight from the original, innate human right to freedom (Kleingeld 1998: 79). The argument is that the one innate right also includes the right to be where nature or chance (without [one s] will) has placed [one] mentioned later in the Doctrine of Right (MM, 6:262), since 9

10 this right is qualified as an original right which human beings possess prior to any act of choice that establishes a right (ibd.). There are various objections one might bring forward against this account. I want to focus on three possible objections: Firstly, Eberl and Niesen argue that there is a huge systematic difference between the one innate right and the cosmopolitan right and it seems implausible, therefore, that the latter can be deduced from the former (2011: 260f.). The one innate right is conceptualized as a negative right to freedom (negatives Freiheitsrecht). The cosmopolitan right, however, may give rise to positive obligations towards refugees and asylum seekers. The question that arises is: How could they be deduced from a negative right to freedom? And I would like to add to this that if the cosmopolitan right is a negative right to freedom, what is the normative basis for countering colonial acts which seems to be at the core of Kant s point made in his discussion of the cosmopolitan right? 5 Secondly, building on the idea of the systematic difference of the one innate right and the cosmopolitan right: The one innate right, on the one hand, is mentioned in the introduction of the Doctrine of Right and is concerned with what is internally mine or yours (6:237). The cosmopolitan right, on the other hand, is introduced in the part of the Doctrine of Right that is concerned with questions of what is externally mine or yours with regard to the private and the public right. The human right to freedom as an innate right belongs to everyone by nature (6:237). The cosmopolitan right on the contrary is an acquired right. It needs an act that establishes this right, whereas the 5 Kleingeld argues that according to Kant: Prospective visitors have no right to intrude into the sphere of freedom of others against their will (1998: 79). Surely, the one innate right to freedom provides us with some basis for a possible justification of a right to exclusion. There remains a difficulty: What Kant would need here is a distinction between legitimate and illegitimate reasons for keeping certain groups out (Kleingeld 1998: 77). Kleingeld argues, however, that Kant is not necessarily committed to the position that any ground for rejection will do (77). Later in this paper, I will try to show how one might argue in favor of this point along the lines of Kant's own work done in the Doctrine of Right. 10

11 human right belongs to everyone independently of any act that would establish a right (ibd.). Thirdly, I want to point to a possible further objection. This interpretation argues since the one innate right also includes the right to be where nature or chance [ ] has placed one (MM, 6:262), the cosmopolitan right can be deduced from the one innate right. However, the right to be where nature or chance has placed one covers only one aspect of the cosmopolitan right. It only covers interaction across borders that come about involuntarily like in the case of the shipwreck victim washed ashore, but it does not cover voluntary interaction like trade relations that are essential to Kant s argument Right to membership The second interpretation claims that the cosmopolitan right is in fact a right to membership in a global political community. This interpretation is based on Kant s phrase that persons are to be regarded as citizens of a universal state of mankind (PP, 8:849 n.). The understanding of the cosmopolitan right as a right to membership has been quite influential for debates in political philosophy (see for instance David Held 1996: 220 ff.; see also Eberl/Niesen 2011: 261). Eberl and Niesen criticize this interpretation one the basis that, according to Kant, a citizen must always be regarded as colegislating members of a state (MM, 6:346), 6 Kleingeld argues that voluntary interaction could be subsumed under another aspect of the one innate right; namely under merely communicating his thoughts to them, telling or promising them something (MM, 6:238). Without being able to pursue this line of thought here further, I want briefly point out one problem: Would this interpretation not bring the cosmopolitan right a bit too close to the ius communicationis, as we know it from Vitoria, that is the idea that there is a universal right to communicate and that this right also implies a right to free migration. A position to which Kant s is diametrically opposed. 11

12 but neither in Doctrine of Right nor in Perpetual Peace does Kant develop a concept of a cosmopolitan constitution including rights of participation. Thus, the cosmopolitan right cannot be regarded as a status of politically actively participating citizen (Eberl/Niesen 2011:261). I am not sure whether Eberl and Niesen s point is convincing. The membership in a given political community does not seem to depend on rights to active political participation, according to Kant. To Kant citizens can be passive members but still be members of the political community in question. However, to me this second reading seems to depart so far from Kant s own account that one might take it rather as a distinct systematic approach to the possible content of a cosmopolitan right than as an interpretation of Kant s own argument at least with Held this seems to be the case. Thus, we can for now leave this account aside and turn to the third reading. 3.3 Spericality of the Earth The third interpretation suggests that the cosmopolitan right is based on certain observations about the empirical conditions of human existence (Flikschuh 2000), in particular the spericality of the earth. In Perpetual Peace Kant s starting point of his argument for the cosmopolitan right seems to be the possession in common of the earth s surface. He says that the cosmopolitan right: belongs to all human beings by virtue of the right of possession in common of the earth s surface on which, as a sphere, they cannot disperse infinitely but must finally 12

13 put up with being near one another; but originally no one had more right than another to be on a place on the earth (PP, 8:358). The earth s surface is limited and so no matter how far food shortage and war might force them to depart from one another, at some point or other they will happen to be near one another again. They all live in the same outer world and, thus, in a situation of possible interaction: Since all humans are spatial beings and since space on earth s surface is limited, they have to be somewhere. 7 And their being somewhere cannot in itself be regarded as an infringement of somebody else s rights. Thus, a foreigner should not be treated with hostility merely for his being on the territory of another. One might find this interpretation questionable: One might ask, for instance, how empirical conditions can provide the normative basis of a right? To that I would answer the empirical conditions are not in themselves the normative basis of the cosmopolitan right. They merely set the limits of what can be asked of people. If ought implies can; and human beings cannot disperse infinitely and cannot dissolve completely but do in fact take up space, then their being somewhere cannot be regarded as an infringement of somebody s rights - and they shall not be treated with hostility for their simply being somewhere. If they on top of that cannot retreat to their native country, because this would lead to their destruction, then this cannot be demanded from them. To sum up: I have tried to show that whereas the first interpretation encounters several difficulties, the second interpretation systematically departs from Kant. The third interpretation, however, provides a thoroughgoing justification of the cosmopolitan right, which accords to Kant s overall argument. 7 On the limitedness of the world and on the extendedness of human beings as two empirical conditions for the concept of right to apply, see Höffe 1990: 129f. 13

14 4. Conclusion: The Cosmopolitan Right, Migration and Exclusion I now want to turn to the implications this detailed discussion of the possible justification of Kant s cosmopolitan right might have for migration and the normative basis of political communities to exclusion. With regard to migratory movements it became apparent that is possible to argue for duties towards refugees with Kant. I can only hint at how extensive the obligation to not reject anybody, if this rejection might lead to his or her destruction, might be conceived, here: As Kleingeld has pointed out, Kant s term Untergang could be interpreted more broadly than referring to death only. It could conceivably also include mental destruction or incapacitating physical harm (1998: 77). 8 To back up this idea a bit further: One might ask, if Kant would have meant death by Untergang, why did he not say so? The term death appears more than one-hundred times in Kant s work, but interestingly he does not use it in the passages on the cosmopolitan right. Here, he uses the term Untergang. There are only fifteen other passages where he uses this term and never with reference to particular human beings. It is used to refer to the decline of faith, the end of the world, the apocalypse, and the like. All this seems to suggest that Kant uses Untergang deliberately and in a broad sense so that it does not refer to death alone. With regard to the normative basis of the right of political communities to exclusion it is central to note that the right to exclusion is at the core of Kant s phrasing of the 8 Benhabib seems to be sceptical about attempts to expand the interpretation of Untergang (Benhabib 2004: 39), though I do not quite understand on what grounds. 14

15 cosmopolitan right. It sets limits to colonialistic acts. The question that arises is: Is it possible to develop an account of legitimate and illegitimate reasons for rejection along the lines of Kant s own reasoning in Perpetual Peace and the Doctrine of Right? Again, I would like to take Kleingeld s ideas as a starting point and then advance her idea a bit further: She argues that Kant is not necessarily committed to the position that any ground for rejection will do (1998: 77). Her idea is that one might draw a distinction between legitimate and illegitimate reasons on the grounds of whether its criteria are related to the actions and proposals of the foreigner rather than being based on an arbitrary, irrelevant characteristic (ibd.). There are now two ways in which we might understand her distinction: a more Rawlsian and a perhaps more Kantian way. According to Rawlsian thinking, an exclusionary policy that is based on arbitrary characteristics is problematic, since any advantage, or disadvantage like being admitted, or not being admitted that somebody gains from an arbitrary characteristic is not justified. What I would call a more Kantian reasoning, however, would put the emphasis on the actions and proposals part, since if the cosmopolitan right is indeed a right, it has to be captured under Kant s concept of right (Rechtsbegriff). And this concept has to do [ ] with the external and indeed practical relation of one person to another (6:230). The cosmopolitan right, the sphere of right that deals with the demands and obligations that individuals have towards foreign states, is concerned with the practical relation of persons. That is to say, that my actions and proposals are of importance and not what is internally mine. 15

16 It is at this point that the advantage of the third interpretation over the first becomes apparent. On the side of the foreign country in question, a justificatory approach to the cosmopolitan right that emphasizes rather the empirical conditions of human existence than a human right to free movement seems to be more able to counter colonialist actions. The cosmopolitan right is twofold: It addresses individuals and states alike. If one sees the justification of this right in the one innate right, one tends to overemphasize the rights of individuals against foreign states. If one takes on a justificatory approach like the third interpretation that I have argued for in this paper, one can also argue for the right of political communities to exclusion. And this seems to be particular important, not only but also since Kant himself advocates a policy of anticolonialism. 16