Published online by Cambridge University Press: 27 September 2011
In debates over the conditions for a just world order, one hears frequent appeals to Kant's call for states to unite in a federation. Given the force of Kant's arguments and their influence on the shape of such institutions as the League of Nations and the United Nations, this is certainly justified. But an essential part of what Kant saw as necessary for a global legal order is usually neglected. What is overlooked is Kant's emphasis on the status of individuals under what he calls ‘cosmopolitan law’. Cosmopolitan law is concerned not with the interaction between states, but with the status of individuals in their dealings with states of which they are not citizens. Moreover, it is concerned with the status of individuals as human beings, rather than as citizens of states. In Kant's political theory, cosmopolitan law (Weltbürgerrecht) is the third category of public law, in addition to constitutional law and international law. Its core is what Kant calls a right to hospitality. He argues that states and individuals have the right to attempt to establish relations with other states and their citizens, but not a right to enter foreign territory. States have the right to refuse visitors, but not violently, and not if it leads to their destruction. This implies an obligation to refrain from imperialist intrusions and to provide safe haven for refugees.
Page references are to Kants Gesammelte Schriften, edited under the auspices of the Königliche Preussische Akademie der Wissenschaften (Berlin: Walter de Gruyter, 1902–). All translations are my own. Abbreviations used: MM = Metaphysics of Morals; PP = Perpetual Peace; TP = ‘On the common saying: “This may be true in theory, but it does not apply in practice”‘.
1 See, for example, Habermas, Jürgen, ‘Kant's idea of perpetual peace, with the benefit of two hundred years' hindsight’, in Bohman, James and Lutz-Bachmann, Matthias (eds.), Perpetual Peace: Essays on Kant's Cosmopolitan Ideal (Cambridge, MA: MIT Press, 1997), pp. 113–53Google Scholar; Williams, Howard, International Relations and the Limits of Political Theory (New York: St. Martin's Press, 1996)CrossRefGoogle Scholar, esp. ch.9; Held, David, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford: Stanford University Press, 1995).Google Scholar Martha C. Nussbaum has drawn on Kant's moral theory for a moral version of cosmopolitanism. See ‘Patriotism and cosmopolitanism’, in Cohen, Joshua (ed.), For Love of Country: Debating the Limits of Patriotism (Boston: Beacon Press, 1996), pp. 3–17Google Scholar, and see her article, ‘Kant and cosmopolitanism’, in Bohman, and Lutz-Bachmann, (eds.), Perpetual Peace, pp. 25–57.Google Scholar In this paper, I discuss not Kant's moral but his political cosmopolitanism. For a version of moral cosmopolitanism (in the Kantian tradition) with political implications, see Pogge, Thomas W., ‘Cosmopolitanism and sovereignty’, Ethics, 103 (1992), 48–75.Google Scholar
2 In his insightful book on democracy and globalization, David Held mentions the change in the status of individuals in international law, but he does so merely in order to show that the sovereignty of states is being contested. He discusses Kant's notion of cosmopolitan law briefly but not its ramifications for the status of individuals as such. Instead, for Held, the ‘cosmopolitan community’ is ‘a community of all democratic communities’ (Democracy and the Global Order, p. 232). In contrast to many interpretations of human rights as moral rights, Habermas emphasizes that they are inherently legal in nature, and orientated to becoming legal rights if they have not become such already. Thus, he shares Kant's individualist commitment, and he explicates this position in part with reference to Kant. But Habermas does not consider the current status of individuals under international law and only discusses Kant's account of a ‘cosmopolitan situation’ in the early sense, mentioned in n.4 below (Habermas, ‘Kant's idea of perpetual peace’).
3 From Francesco de Vitoria (1492/3–1546) on, free communication and trade were mentioned in the context of international law, i.e. as right of states and their citizens against other states. Kant seems to be the first to introduce it as a separate, third category of public law.
4 In this essay, I focus on Kant's position in Perpetual Peace and the Metaphysics of Morals. In earlier texts, Kant defends a league of states with coercive powers. In ‘Idea for a universal history from a cosmopolitan point of view’, Kant speaks of such a league as a ‘great political body’ in which every member state receives its security and rights from a ‘united power and from decisions in accordance with the laws of a united will’ (8: 24, 28; cf. also TP 8: 310–11). Although Kant calls this a ‘cosmopolitan' state of affairs, only states, not individuals, are the ‘citizens’ in such a political system.
5 Reinhard Brandt shows that the third definitive article can be regarded as the systematic completion of the first and second. See Brandt, Reinhard, ‘Vom Weltbürgerrecht’, in Höffe, Otfried (ed.), Immanuel Kant: Zum ewigen Frieden (Berlin: Akademie Verlag, 1995), pp. 133–48.Google Scholar
6 Cavallar, Georg, Pax Kantiana: Systematisch-historische Untersuchung des Entwurfs ‘Zum ewigen Frieden’ (1795) von Immanuel Kant (Vienna: Böhlau, 1992), pp. 235ff.Google Scholar
7 Krug, Wilhelm Traugott, ‘Aphorismen zur Philosophie des Rechts’, in Dietze, Anita and Dietze, Walter (eds.), Ewiger Friede? Dokumente einer deutschen Diskussion um 1800 (Leipzig: Kiepenheuer, 1989), pp. 362–3.Google Scholar
8 The term ‘universal state of humankind’ should not be taken to imply that Kant advocates the establishment of a world state that would absorb existing states. It refers to the legal system which unites all humans under common, cosmopolitan law (cf. MM 6: 311).
9 The difference between Staat (PP) and Volk (MM) is not as great as it may seem to be. Kant explains, in §53 of the Metaphysics of Morals, that the term Volk can be used ‘in the legal sense’ as natio. It then refers to a people born within the same republican state, who, as citizens, form something like a family (MM 6: 343).
10 On a terminological note, Kant might have wished to draw a distinction between active and passive world citizens analogous to the distinction in MM §46. Children, who do not yet have the requisite cognitive capacities to be active citizens, would then be passive world citizens until they reach maturity and advance to active world citizenship. In MM and TP Kant infamously and inconsistently also excludes women and ‘dependent’ workers from active citizenship. Even if Kant extended this exclusion to the cosmopolitan level, this would not entail that active and passive world citizens would be treated differently at the border. Although ‘passive world citizens’ would be excluded from voting, both classes of world citizens would be equally protected by the law. Therefore, I use gender-inclusive language in the examples in my discussion of the content and justification of cosmopolitan law. See also my article, ‘The problematic status of gender-neutral language in the history of philosophy: the case of Kant, ’, Philosophical Forum, 25 (1993), 134–50.Google Scholar
11 In her translation of the Metaphysics of Morals, Mary Gregor translates Verkehr as ‘commerce’, which is correct but ambiguous, since it could also be read narrowly as referring to business only.
12 Kant's position is here diametrically opposed to Vitoria's, who argued that the Spanish war against the American Indians was justified, because they should not have denied the Spanish the right to enter their territory. See Francisco de Vitoria, De Indis, Q.3, de tit. leg., art.l, in Vitoria, Francisco de, Political Writings, ed. Anthony Pagden and Jeremy Lawrance (Cambridge: Cambridge University Press, 1991), p. 278.Google Scholar
13 See also Williams, Howard, Kant's Political Philosophy (Oxford: Blackwell, 1983), p. 260.Google Scholar
14 On refugee rights, see Goodwin-Gill, Guy S., The Refugee in International Law, 2nd edn. (Oxford: Clarendon, 1996).Google Scholar
15 Tieftrunk, Johann Heinrich, Philosophische Untersuchungen über das Privat- und das öffentliche Recht zur Erläuterung und Beurtheilung der metaphysischen Anfangsgründe der Rechtslehre vom Herrn Prof. Imm. Kant (Halle: Rengersche Buchhandlung, 1798), vol.2, pp. 576–7.Google Scholar
17 I here develop a suggestion made by Habermas, Jürgen, in ‘Kant's idea of perpetual peace’, pp. 128–9.Google Scholar
18 See, on Kant's doctrine of the innate right to freedom, Mulholland, Leslie Arthur, Kant's System of Rights (New York: Columbia University Press, 1990), pp. 199–231.Google Scholar On the right to be on land as innate right, see, pp. 218–20.
19 Lutz-Bachmann, Matthias, ‘Kant's idea of peace and the philosophical conception of a world republic’, in Perpetual Peace, pp. 59–77;Google ScholarHöffe, Otfried, ‘Kant als Theoretiker der internationalen Rechtsgemeinschaft’, in Schönrich, Gerhard and Kato, Yasushi (eds.), Kant in der Diskussion der Moderne (Frankfurt: Suhrkamp, 1996), pp. 489–505Google Scholar; Byrd, Sharon, ‘The state as a “moral person”’, in Robinson, Hoke (ed.), Proceedings of the Eighth International Kant Congress, Memphis 1995 (Milwaukee: Marquette University Press, 1995), pp. 171–89.Google Scholar
21 28 July 1951. United Nations Treaty Series, vol.189, pp. 150ff. This was not the first treaty on the status of refugees, but the result of a develop ment that started in the early decades of this century. See Verdross, and Simma, , Universelles Völkerrecht, pp. 839–40.Google Scholar
23 This does not make the category obsolete, since that was developed in terms of the bearers of rights.
24 Cf. ‘What is enlightenment?’ and TP part 2.
25 Cf. also Bohman, James, ‘The public spheres of the world citizen’, in Proceedings of the Eighth International Kant Congress, pp. 1065–80.Google Scholar
26 In fact, as Benjamin Barber points out, it may very well lead to vehement reactions in the form of ‘factitious patriotism’ and dangerous anti-universalism. See Barber, Benjamin R., Jihad vs. McWorld (New York: Times Books, 1995).Google Scholar See also the discussion of the role Kant attributes to the ‘spirit of trade’.
27 I would like to thank Joel Anderson, Ciaran Cronin, Larry May, Thomas McCarthy, Thomas Pogge, Cari Wellman, and two anonymous referees for helpful comments. Earlier versions of this essay were presented at the 1996 conference on the ‘Metaphysics of Morals’ at Smith College, organized by Sharon Byrd, Jan Joerden, and Joachim Hruschka, and at the 1997 meeting of the Central Division of the APA. I would like to thank the participants in both meetings for many helpful comments and suggestions.