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Constructivism in cosmopolitan law: Kant’s right to visit

Published online by Cambridge University Press:  20 November 2017

CLAUDIO CORRADETTI
CLAUDIO CORRADETTI*
Affiliation:
University of Rome, ‘Tor Vergata’, Via Columbia 1, 00133 Roma, Italy
*
*Email: Claudio.Corradetti@uniroma2.it
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Abstract:

Kant is regarded as one of the most influential cosmopolitan thinkers. Indeed his legacy still influences the contemporary legal and philosophical debate on this issue. But what is the Kantian conception of cosmopolitan law? In which terms does it arise out of his notion of a ‘right to visit’? How does it contribute to the construction of a ‘cosmopolitan constitution’? In this article the view is advanced that Kant was a legal constructivist. The argument assumes also that within Kant’s view of an ‘original community of interaction’, the justification of a cosmopolitan notion of authority allows exercises of freedom under a general scheme of right. Kant’s ‘cosmopolitan constitution’ depends therefore upon such rationale, as well as on the jurisdictional link that the right to visit determines in allowing individuals with the possibility to have a ‘place on earth’.

Keywords

cosmopolitan constitutionKantlegal constructivismoriginal communityright to visit
Type
Research Article
Information
Global Constitutionalism , Volume 6 , Issue 3 , November 2017 , pp. 412 - 441
Copyright
Copyright © Cambridge University Press 2017 

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References

1 Selecting from the burgeoning literature on the topic I suggest M Kumm, ‘On the Past and Future of European Constitutional Scholarship’ (2009) 7(3) International Journal of Constitutional Law 401; N Walker, ‘Taking Constitutionalism Beyond the State’ (2008) 56 Political Studies 519; Dobner, P and Loughlin, M (eds), The Twilight of Constitutional Law: Demise or Transmutation? (Oxford University Press, Oxford, 2010).CrossRefGoogle Scholar

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5 Kant speaks of the role of a ‘will that is united originally and a priori’, one ‘that presupposes no rightful act [rechtlichen Akt] for its union’, and which grounds, as I argue, a non-contractual obligation to enter into a civil condition. Kant (n 4) section 16, 418.

6 I Kant, ‘Toward Perpetual Peace’ in Gregor, Immanuel Kant: Practical Philosophy (n 4) 329.

7 On this distinction see Mori, M, La pace e la ragione: Kant e le relazioni internazionali: diritto, politica, storia (Il Mulino, Bologna, 2008) 144.Google Scholar

8 Kant (n 6) 329.

9 See, respectively, for ‘cosmopolitan constitution’ Kant (n 6) 329; whereas for ‘cosmopolitan commonwealth’, see I Kant, ‘On the Common Saying: That May be Correct in Theory’ in Gregor, Immanuel Kant: Practical Philosophy (n 4) 308. In the following sections I quote different English editions of Kantian works. The choice will depend on the version I find most adequate to the point I intend to elucidate.

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11 Kant (n 6) 329 (emphasis added).

12 See the parallel for moral and political constructivism in Krasnoff, L, ‘How Kantian is Constructivism?’ (1999) 90(30) Kant Studien 385CrossRefGoogle Scholar. This seems also the strategy endorsed by Forst’s ‘right to justification’ as the most ‘fundamental moral demand that no culture or society may reject’. Forst, R, The Right to Justification: Elements of a Constructivist Theory of Justice (Columbia University Press, New York, NY, 2014) 209ff.Google Scholar

13 Kant (n 6) 327. In the following sections I use ‘cosmopolitan’ and ‘global’ constitution(alism) as synonymous terms.

14 Kant (n 6) 329.

15 Kant (n 6) 328.

16 Kant (n 4) 393.

17 Kant (n 4) 387.

18 Kant (n 4) 505.

19 Kant (n 6) 340. On this point see Koskenniemi, M, ‘Constitutionalism as a Mindset: Reflections on Kantian Themes About International Law and Globalization’ (2006) 8(1) Theoretical Inquiries in Law 9.CrossRefGoogle Scholar

20 Kant (n 6) 326.

21 ibid.

22 Kant (n 6) 338.

23 See respectively, H Grotius, De Iure Belli ac Pacis in BJA de Kanter-van Hettinga Tromp (ed), (Leiden, Brill, 1939 [1625]) and S Pufendorf, De Jure Naturae et Gentium in F Böhling (ed), (Berlin, Akademie Verlag, 1998 [1672]). See also, G Achenwall and J S Pütter, ‘Elementa Iuris Naturae’, G Achenwall and JS Pütter, Anfangsgründe des Naturrechts in J Schröder (ed), (Insel, Frankfurt, 1995 [1750]). For Kant ‘community’ is primarily, even if not uniquely, a ‘pure concept of the understanding’. As Milstein notes, this illustrates a form of ‘relation’ rather than a sociological or a political concept. This relation of interaction is characterised by ‘reciprocal causality’, one where the affirmation of one member implies the denial of all others and vice versa. In B Milstein, ‘Kantian Cosmopolitanism beyond “Perpetual Peace”: Commercium, Critique, and the Cosmopolitan Problematic’ (2010) (21)1 European Journal of Philosophy 121. The disjunctive relation between a member and the original community can be understood only on the presumption of an original unified concept of possession which considers the totality of human beings. It is only on the premise of an original form of interconnection among all individuals that a disjunctive relation of interaction among all members is established.

24 Kant (n 4) 405.

25 ibid.

26 Kant (n 4) 489.

27 Kant (n 4) 414.

28 Kant (n 6) 329.

29 I Kant, ‘Vorlesungen Rechtslehre’ [23:323: 26–30; 23:320: 20–23] and [23:321:14–16]. Quoted in Byrd, BS, ‘Intelligible Possession of Objects of Choice’ in Denis, L (ed), Kant’s Metaphysics of Morals: A Critical Guide (Cambridge University Press, Cambridge, 2010) 108.CrossRefGoogle Scholar

30 Kant (n 4) 416.

31 Kant (n 4) 392.

32 I follow here Gregor’s translation (n 4) 387.

33 As Pogge puts it: ‘If persons were to embrace […] ‘what seems just and good’ (Rechtslehre 312), then a social order ensuring interpersonal consistency would once again not be achieved. Different schemes for achieving mutual consistency will be mutually inconsistent […] Kant’s later theory of justice sees its task then in pruning further the set of consistent systems of constraints – ideally down to a single one […] The first step in this reduction is taken through the other component of pure practical reason’s formal aspect – the demand of universality. One person should have a particular external freedom only if that same freedom is enjoyed by everyone’; see Pogge, T, ‘Kant’s Theory of Justice’ in Byrd, BS and Hruschka, J (eds), Kant and Law (Ashgate, Aldershot, 2006) 413.Google Scholar

34 As Ripstein synthesises this point: ‘Interference with another person’s freedom creates a form of dependence; independence requires that one person not be subject to another person’s choice’ in Ripstein, A, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press, Boston, MA, 2009) 15.CrossRefGoogle Scholar

35 Kant (n 4) 489. With regard to T Pogge’s ‘lexical hierarchy’ of Kant’s principles of justice, two formal and one material {FP-1}Consistency{FP-2}Universality{MP}Enlightenment, I would add a fourth element concerning the ‘circumstances of justice’ as the material constraints on justice. I would suggest calling this {MC-2} Geographical/Resources Scarcity. See T Pogge (n 33) 414.

36 Kant (n 29) 108.

37 Kant (n 4) 412.

38 Kant (n 6) 329.

39 Kant (n 4) 456.

40 Kant (n 4) 388.

41 Gregor’s translation of Kant (n 4) 412.

42 Kant distinguishes between three types of possession (empirical, as a concept of the understanding and as intelligible possession); Gregor’s translation of Kant (n 4) 401. Where the first two categories pertain to the notion of having control over something, either directly or indirectly, intelligible possession pertains to the legal requirement that others should not interfere with my possession.

43 Byrd (n 29) 94.

44 Kant (n 4).

45 Kant (n 4) 415.

46 Kant (n 4) 416.

47 Kant (n 4) 489.

48 Locke, J, Two Treaties on Government in Laslett, P (ed), (Cambridge University Press, Cambridge, 1960 [1690])Google Scholar section 27. With regard to Locke, if the ‘enough and as good’ clause is interpreted as a sufficiency, than space is left for a restrictive interpretation of the compensatory principle for cosmopolitan public authority. As Waldron acutely remarks with regard to Locke ‘In §27 the rather ambiguous logical connective ‘at least where’. the meaning of ‘at least where’ may differ, but surely reading of it is as a connective introducing a sufficient where Q’ seems to me to be most naturally rendered as than as ‘If P then Q’; the words ’at least’ indicate that whenever Q obtains, there may also be other circumstances even though Q does not obtain’. In Waldron, J, ‘Enough and as good left for others’ (1979) 29(117) The Philosophical Quarterly 321Google Scholar.

49 See Pinheiro Walla, A, ‘Common Possession of the Earth and Cosmopolitan Right’ (2016) 107(1) Kant-Studien 160–78.Google Scholar

50 Locke (n 48) II 6; also in Waldron (n 48) 325.

51 Waldron (n 48) 319.

52 This view therefore integrates the purely domestic conception of state’s territorial rights legitimacy advanced by A Stilz, ‘Nations, States and Territory’ (2011) 121(3) Ethics 572. The author explicitly recognises that the rights to territorial jurisdiction are ‘limited by external legitimacy conditions that constrain how the state should exercise these rights when their exercise affects foreigners’, 573–4.

53 As Ypi in her otherwise well-conceived argument argues that ‘permissive principles justify states of affairs incompatible with the idea of ‘‘right’’ only provisionally and conditionally’; L Ypi, ‘A Permissive Theory of Territorial Rights’ (2012) 22(2) European Journal of Philosophy 290ff. The problem I see with this account, in so far as it relies on a Kantian argument, is that the ‘permissible’ justifies an act of the will in a condition deprived of law, as with the unilateral exercise of the will (lex permissiva).

54 In contrast with W Scheuerman, I do not consider that for Kant the realisation of a republican confederation was just a matter of time. See Scheuerman, W, ‘Cosmopolitanism and the World State’ (2014) 40(3) Review of International Studies 419Google Scholar, in particular 440.

55 Flikschuh, K, Kant and Modern Political Philosophy (Cambridge University Press, Cambridge, 2000) 154.Google Scholar

56 Kant (n 4) 376.

57 One significant exception in this respect is Flikschuh (n 55) 168ff as well as K Flikschuh, ‘Elusive Unity: the General Will in Hobbes and Kant’ (2012) 25 Hobbes Studies, in particular 36ff. There it is argued for a notion of a ‘general united will’ as a form of coercive public authority which legislates in the name of a common possession of the earth, not by means of a social contract.

58 See Flikschuh (n 57) 21–42.

59 Kant (n 4) 85.

60 Flikschuh (n 57) 32.

61 This is mentioned by Kant in various ways in his writings, as in the Seventh Proposition of Kant (n 2) 9–23, where war is said to prevent human enhancement; or in Kant, I, ‘Conjectures on the Beginning of Human History’ in Reiss, HS (ed), Kant: Political Writings (Cambridge University Press, Cambridge, 1991) 231–2Google Scholar, where even ‘preparation for the war’ is said to exhaust the internal resources of the state.

62 See Niesen when he claims that ‘The subjective cosmopolitan right thus appears to constitute a third category of subjective right to communication’; Niesen, P, ‘Colonialism and Hospitality’ (2007) 3(1) Politics and Ethics Review 92.Google Scholar

63 Kant (n 4) 322.

64 See Kant, I, Zum ewigen Frieden in von O Eberl, Kommentar und Niesen, P (Suhrkamp, Berlin, 2011) 19.Google Scholar

65 Kant (n 6) 322.

66 P Kleingeld, ‘Kant’s Cosmopolitan Law’ (1998) 2(1) Kantian Review 73; Benhabib, S, The Rights of Others: Aliens, Residents, and Citizens (Cambridge University Press, Cambridge, 2004).Google Scholar

67 As Byrd and Hruschka put this: ‘securing the mine and thine … can be done only in a juridical state, only in a state of distributive justice, only in a situation of a lex iustitiae … Provisional ownership is not secured, but instead preliminarily legal possession … earth’s surface must be divided before any individual has a property claim to secure’, in BS Byrd and J Hruschka, Kant’s Doctrine of Right: A Commentary (Cambridge University Press, Cambridge, 2012) 138–9. See also K Flikschuh, ‘Kant’s Sovereignty Dilemma: A Contemporary Analysis’ (2010) 18(4) The Journal of Political Philosophy 469ff.

68 Benhabib, The Rights of Others (n 66).

69 Byrd and Hruschka (n 67).

70 Byrd and Hruschka (n 67) 208.

71 Byrd and Hruschka (n 67) 208–9. On this restrictive interpretation see also Flikschuh (n 67) 476.

72 ‘In the cosmopolitan case, the supreme coercive power of public right in the state is replaced by the initially very weak power of the public opinion of world citizens, that is, the power of a critical public’. J Bohman, The Public Spheres of the World Citizen in Bohman, J and Lutz-Bachmann, M (eds), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (MIT Press, Boston, MA, 1997) 180.Google Scholar

73 See the entry ‘Verkehr’ in Deutsches Wörterbuch von Jacob und Wilhelm Grimm. 16 Bde. in 32 Teilbänden, Leipzig 1854–1961. Quellenverzeichnis, Leipzig 1971, Bd.25, Sp.625 bis 637.

74 Kant (n 4) 489.

75 Kant (n 6) 322. See original text in Kant (n 64) 19.

76 Byrd and Hruschka (n 67) 208.

77 Kant (n 6) 322. See original text in Kant (n 64) 19.

78 ibid.

79 Kant (n 6) 328.

80 Kant (n 6) 336.

81 Kant (n 4) 489. See original text in Kant (n 64) 85.

82 As Kant makes this general point: ‘For to preserve my life is only a conditional duty (if it can be done without a crime); but not to take the life of another who is committing no offense against me [der mich nicht beleidigt] and does not even lead me into the danger of losing my life is an unconditional duty’ in Kant (n 4) 299. On a similar point see A Pinheiro Walla (49) 160–78.

83 For a different position on this point see A Pinheiro Walla, ibid. The author quite rightly argues that Kant abandons Grotius’ traditional view on needs as grounding elements for the common possession on earth. However, while she establishes important connections with the right not to be refused when in danger of life, not much is said with regard to the positive ‘interactional’ aspect of Kant’s right to visit, namely, the right to submit communicative demands that lead to the formulation of transnational legal principles.

84 Kant (n 4) 387.

85 On the link between autonomy and public reason in Kant, see O’Neill, O, ‘Autonomy and Public Reason’ in Timmons, M and Johnson, RN (eds), Reason, Value, and Respect: Kantian Themes from the Philosophy of Thomas E. Hill, Jr. (Oxford University Press, Oxford, 2015) 119–34.Google Scholar

86 Kant (n 6) 329.

87 ibid.

88 Kant (n 4) section 14, 415.

89 This hypothesis diverges profoundly from Byrd and Hruschka’s thesis for whom once the disjunctively universal right to a place on earth is met, then the right to be located in a particular location disappears ‘and with it the right to visit that other place’; see Byrd and Hruschka (n 67) 207. Contrary to this interpretation, I consider that the availability to the cosmopolitan citizen of the right to visit prevents closure as with final-state individual geographical assignment.

90 Kant (n 6) 351.

91 Kant (n 4) 415.

92 See Forst, R, The Right to Justification. Elements of a Constructivist Theory of Justice (Columbia University Press, New York, NY, 2014) 203ff.Google Scholar

93 As ‘The trustee-of-humanity model allows states to claim territory on behalf of humanity because individual states, in their capacity as territorial authorities, are conceived as co-representatives of humanity. As trustees as well as representatives, however, states cannot treat peaceful migrants with indifference.’ Fox-Decent, E, ‘Constitutional Legitimacy Unbound’ in Dyzenhaus, D and Thorburn, M (eds), Philosophical Foundations of Constitutional Law (Oxford University Press, Oxford, 2016) 135.Google Scholar

94 Kant, I, ‘An Answer to the Question: What is Enlightenment?’ in Gregor, Immanuel Kant: Practical Philosophy (n 4) 18.Google Scholar

95 Kant (n 94) 19. According to Waldron this point seems to prevent any interpretation of Kant as a positivist. See Waldron, J, ‘Kant’s Legal Positivism’ (1996) 109(7) Harvard Law Review 1535.Google Scholar

96 See I Kant, ‘The means nature employs in order to bring about the development of all their predispositions is their antagonism in society, insofar as the latter is in the end the cause of their lawful order. Here I understand by ‘antagonism’ the unsociable sociability of human beings, i.e. their propensity to enter into society, which, however, is combined with a thoroughgoing resistance that constantly threatens to break up this society’, in Kant (n 2) 13.

97 Kant (n 4) 491.

98 Kant (n 6) 340. On this point see Koskenniemi (n 19) 9–36.

99 Kant (n 6) 329.

100 In Derrida, J, De l’hospitalité (Calmann-Lévy, Paris, 1997).Google Scholar

101 ‘A moral politician will make it his principle that, once defects that could not have been prevented are found within the constitution of a state or in the relations of states, it is a duty, especially for heads of state, to be concerned about how they can be improved as soon as possible and brought into conformity with natural right, which stands before us as a model in the idea of reason, even at the cost of sacrifices of their self-seeking [inclinations]’. Kant (n 6) 340. For the idea of a ‘duty of justification’ as a ‘duty that citizens have as ‘‘world citizens’’’, see Forst, R, The Right to Justification: Elements of a Constructivist Theory of Justice (Columbia University Press, New York, NY, 2014) 225.Google Scholar

102 On the subjects of cosmopolitan rights including not only individuals, but also states and peoples, see Niesen, P, ‘Colonialism and Hospitality’ (2007) 3(1) Politics and Ethics Review 98.Google Scholar

103 Kant (n 6) 330.

104 Bohman (n 72).

105 Bohman emphasises this point in his reactualisation of Kant’s cosmopolitanism when he asserts that: ‘When community-wide biases restrict the scope of such self-scrutiny, usually by leaving relevant problems of the public agenda, a new public emerges to press for public self-scrutiny and sometimes for new rules and institutions … The civil rights movement, rather than the Supreme Court, is the exemplar of the public use of reason that can be extended to cosmopolitan conditions.’ Bohman (n 72) 190.

106 On this point see the recent collection of essays edited by Flikschuh, K and Ypi, L, Kant and Colonialism (Oxford University Press, Oxford, 2014)Google Scholar.

107 Kant (n 6) 329. As Risse observes: ‘China and Japan may impose restrictions only if that is what is required to protect their citizens from assault, that is, only if that is what the maintenance of charitable treatment of individuals by foreign government requires. European powers had undermined that requirement. Protection against their intrusion was needed.’ (original emphasis); Risse, M, ‘Taking up space on earth: Theorizing territorial rights, the justification of states and immigration from a global standpoint’ (2015) 4(1) Global Constitutionalism 98.Google Scholar

108 On the contextualisation of some of these problems in the contemporary world see, Pogge, T, World Poverty and Human Rights (Polity Press, Cambridge, 2008).Google Scholar

109 ‘Publicity has a limiting effect upon all strategic actions, both within states and between states. In the First Appendix to Perpetual Peace, Kant subjects political strategies to tests of publicity alone: if many maxims of political expediency are publicly acknowledged, they cannot attain their own purpose’; Bohman (n 72) 182.

110 Bohman (n 72) 184.

111 The relevant passage is Kant (n 6) 338. On this point see Koskenniemi (n 19) 9ff.

112 Kant (n 2) 16.

113 Kant (n 4) 491 (emphasis added).

114 ibid.

115 The expression is taken from Rawls, J, The Law of Peoples (Harvard University Press, Cambridge, MA, 1999) 11ff.Google Scholar

116 Kant (n 6) 328.