Hostname: page-component-cd9895bd7-q99xh Total loading time: 0 Render date: 2024-12-27T09:08:03.108Z Has data issue: false hasContentIssue false
  • English
  • Français

WIRTBARKEIT: COSMOPOLITAN RIGHT AND INNKEEPING

Published online by Cambridge University Press:  18 December 2018

Aravind Ganesh Open the ORCID record for Aravind Ganesh [Opens in a new window]
Aravind Ganesh*
Affiliation:
Max Planck Institute Luxembourg for Procedural Law and Vrije Universiteit Amsterdam
Get access Rights & Permissions [Opens in a new window]

Abstract

After defining Cosmopolitan Right as being limited to the conditions of “hospitality,” Kant includes “Wirtbarkeit” in brackets, a word that connotes innkeeping. Moreover, significant similarities obtain between the relevant passages of the Perpetual Peace and those of the Digest of Justinian on the obligations of ships’ masters, innkeepers, and stable keepers. Unlike for ordinary householders, hospitality for innkeepers is a legal obligation, not a matter of philanthropy: they have traditionally been deemed public officials with limited discretion to refuse travelers, and as fiduciaries of their guests strictly liable for losses to their property. This article attempts to explain Kant's concept of Cosmopolitan Right by analogy to the private law of innkeeping, and ultimately engages in the central philosophical debate about Cosmopolitan Right by accounting for Cosmopolitan Right solely from the “innate” right to freedom, rather than from “acquired” facts such as land or resource distributions or historical injustices.

Type
Research Article
Information
Legal Theory , Volume 24 , Issue 3 , September 2018 , pp. 159 - 190
Copyright
Copyright © Cambridge University Press 2018 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I am grateful to Philip Allott, Claudio Corradetti, Ester Herlin-Karnell, Emily Kidd White, Mattias Kumm, Peter Niesen, André Nunes Chaïb, Madeline Gleeson, Alice Pinheiro Walla, Arthur Ripstein, Enzo Rossi, Christof Royer, Hélène Ruiz Fabri, Konstanze von Schütz, Edoardo Stoppioni, Ernest Weinrib, and Reinhard Zimmermann. I am strictly and vicariously liable for all mistakes.

References

1. Kant, Immanuel, Toward Perpetual Peace, in Practical Philosophy: The Cambridge Edition of the Works of Immanuel Kant 311, 328–329 (8:357–358) (Gregor, Mary J. ed., Cambridge Univ. Press, 9th ed. 2006) (1795)Google Scholar. Citations to the Doctrine of Right and the Perpetual Peace are denoted with “DR” and “PP” respectively and cite the page numbers of the Akademie compilation of Kant's collected works, and of Mary Gregor's translation. The preparatory draft for the Perpetual Peace, cited as “DPP,” is available online at the Korpora database maintained by the universities of Duisburg and Essen.

2. Niesen, Peter, Colonialism and Hospitality, 3 Pol. & Ethics Rev. 90, 90 (2007)Google Scholar.

3. See Coggs v. Bernard, 92 Eng. Rep. 107, 109–114 (1703); Jones, William, An Essay on the Law of Bailments (London, Dilly, 1781), at 11, 35–41Google Scholar, 75–77. Story criticizes Jones's “extreme solicitude to make the principles of this branch of jurisprudence, as administered at Rome, appear in harmony with the common law, as administered in Westminster Hall,” but concedes that Lord Holt's reasoning in Coggs v. Bernard “was greatly assisted by Bracton, and still more by the civil law, from which Bracton had drawn his own materials.” Story, Joseph, Commentaries on the Law of Bailments: With Illustrations from the Civil and the Foreign Law (Cambridge, Hilliard & Brown 1839), at iv–vGoogle Scholar. Holmes in contrast contends that English bailment remains fundamentally Germanic. Holmes, Oliver Wendell, The Common Law (Harv. Univ. Press, 2009) (1881)CrossRefGoogle Scholar, at ch. 5.

4. Zimmermann, Reinhard, Innkeepers’ Liability - Die Entwicklung der Gastwirtshaftung in England, in Festschrift für Claus-Wilhelm Canaris zum 70. Geburtstag (Volume 2) 1435, 1437 (Heldrich, Andreas, Prölss, Jürgen & Koller, Ingo eds., 2007)Google Scholar (“Interessant ist die Gastwirtshaftung auch als Zeugnis europäischer Rechtseinheit – sowohl historisch begründeter als auch durch moderne Maßnahmen der Privatrechtsharmonisierung jedenfalls teilweise wiederlangter.”).

5. See Sarah Holtman, Civility and Hospitality: Justice and Social Grace in Trying Times, 6 Kantian Rev. 85, 100 (2002) (“[W]e often do think of those to whom we ascribe hospitality as having developed a set of appropriately welcoming practices towards strangers… . We may attribute hospitality to the person who always seems to know just the way to make a stranger, whether the new colleague or the international visitor, feel welcome.”); Formosa, Paul, Kant on the Highest Moral-Physical Good: The Social Aspect of Kant's Moral Philosophy, 15 Kantian Rev. 1, 11 (2010)CrossRefGoogle Scholar (“To be hospitable is to invite the other into your home or country, to share your food and table, and to enter into peaceful social relations with him based on the respect and love due to all humans, wherever they come from.”).

6. Grimm's Dictionary, available at http://dwb.uni-trier.de/de/.

7. Derrida, Jacques, Hostipitality, 5 Angelaki 3, 4 (2000)CrossRefGoogle Scholar.

8. Holtman, supra note 5, at 4.

9. Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (2004), at 28.

10. Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (2013), at 128–129.

11. Derrida, supra note 7, at 4.

12. Benhabib, supra note 9, at 29.

13. DR 6:352, 489. Recht can mean both “law” and “right,” in the sense of both an entitlement as well as a correct state of affairs.

14. DR 6:230, 387. This principle is designated as the “Universal Principle of Right.”

15. DR 6:352, 489.

16. DR 6:343, 482.

17. See DR 6:327, 469 (arguing that for a sovereign to establish an official religion would be “beneath its dignity,” because thereby “the monarch makes himself a priest”); Benhabib, supra note 9, at 81:

To view peoples as homogeneous entities characterized by a clearly identifiable ‘moral nature’ and a source of ‘common sympathies’ is not only sociologically wrong; this view is inimical to the interests of those who have been excluded from the people because they refuse to accept or respect its hegemonic moral code.

18. See Niesen, supra note 2, at 91.

19. Grotius, Hugo, The Freedom of the Seas, or, The Right Which Belongs to the Dutch to Take Part in the East Indian Trade (Scott, James Brown ed., van Deman Magoffin, Ralph trans., Lawbook Exchange, 2001) (1609), at 8Google Scholar.

20. Vitoria, Francisco de, On the American Indians, in Vitoria: Political Writings 231, 278 (Pagden, Anthony & Lawrance, Jeremy eds., Cambridge Univ. Press, 1991)CrossRefGoogle Scholar (c. 1532).

21. DPP 23:173.

22. DPP 23:174–175.

23. PP 8:359, 330.

24. Burke, Edmund, Mr. Burke's Speech on Mr. Fox's East India Bill (Dublin, White 1784), at 32–33Google Scholar.

25. PP 8:360, 330.

26. DPP 23:175 (“Ein Funke der Verletzung des Menschenrechts auch in einem andern Welttheil gefallen nach der Brennbarkeit des Stoffs der Herrschsucht in der menschlichen Natur vornehmlich ihrer Häupter die Flamme des Krieges leicht bis zu der Gegend verbreitet wo er seinen Ursprung genommen.”).

27. Eleftheriadis, Pavlos, Cosmopolitan Law, 9 Eur. L.J. 241, 245 (2003)CrossRefGoogle Scholar. Instead, Kant was concerned that his understanding of cosmopolitan right would seem “fantastic and exaggerated.” PP 8:360, 330.

28. Dig. 47.5.1.6 (Ulpian, ad Edictum 38), trans. Alan Watson, 4 The Digest of Justinian 275 (rev. ed. 1998).

29. Dig. 4.9.1 pr – 1 (Ulpian, ad Edictum 14), trans. Alan Watson, 1 The Digest of Justinian 160 (rev. ed. 1998).

30. J. Inst. 4.5.3.

31. Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (1996), at 517.

32. See Birks, Peter, The Roman Law of Obligations: The Collected Papers of Peter Birks (Descheemaeker, Eric ed., 2014)CrossRefGoogle Scholar, at 213; Holmes, supra note 3, at 16–17; Zimmermann, supra note 31, at 1121–1122.

33. Jones, supra note 3, at 95; Story, supra note 3, at 307 (§470).

34. Zimmermann, Reinhard, Die Geschichte der Gastwirtshaftung in Deutschland, in Usus modernus pandectarum: Römisches Recht, Deutsches Recht und Naturrecht in der Frühen Neuzeit; Klaus Luig zum 70. Geburtstag 271, 274 (Haferkamp, Hans-Peter & Repgen, Tilman eds., 2007)Google Scholar.

35. Zimmermann, supra note 31, at 516, n.51.

36. Bogen, David S., The Innkeeper's Tale: The Legal Development of a Public Calling, 1996 Utah L. Rev. 51, 60–61 (1996)Google Scholar.

37. See id. at 84, and sources cited therein.

38. White's Case, 73 Eng. Rep. 343 (1558) (Eng.).

39. See Story, supra note 3 at 307 (§470) (“[B]y the common law (which in this respect differs from the civil law) an innkeeper is not, if he has suitable room, at liberty to refuse to receive a guest, who is ready to pay him a suitable compensation.”). For reasons that cannot be explored here, it appears that the actio furti, much like the other quasi-delicts, became obsolete very early, perhaps even before the Digest was compiled. See Bogen, supra note 36, at 353–354.

40. See Bogen, supra note 36, at 355–357, and sources cited therein.

41. Coggs v. Bernard, 92 Eng. Rep., at 112 (defining a category of bailees as exercising “a publick employment,” and who were by law required to “carry goods, against all events but acts of God, and of the enemies of the King”). A leading textbook on American innkeeping law observes that this “duty is symbolised by the traditional ceremony at the dedication of a new hotel or motel of throwing away a key to the inn, thus proclaiming to the world that the door to the hospitality of the inn will never be locked and that all weary travelers will always be welcome.” Sherry, John H., The Laws of Innkeepers: For Hotels, Motels, Restaurants, and Clubs (Sherry, John E. H. ed., 3d ed. 1993), at 39Google Scholar.

42. Subject to statutory limits, of course. See, e.g., Bürgerliches Gesetzbuch [BGB] [Civil Code], Aug. 18, 1896, §701; Hotel Proprietors Act, 1956, 4 & 5 Eliz. 2, c. 62 , §1(2) (Eng.).

43. Zimmermann, supra note 31, at 521 (“Carriers by sea, innkeepers and stable keepers may, of course, still be individually unreliable; but it can hardly be maintained that in their collectivity, as members of the respective professions …, they are particularly disreputable. After all, hotels without bawdyhouses are no longer that exceptional.”).

44. Jones, supra note 3, at 96. See also Zimmermann, supra note 31, at 516.

45. Zimmermann, supra note 31, at 521. Zimmermann expresses this point in strikingly Kantian terms elsewhere. See Zimmermann, supra note 4, at 1435 (“Hätte [der Gast] ‚regelmäßig den Beweis einer dem Gastwirthe zur Lastfallenden Verletzung einer kontraklichen Pflicht,‘ als Ursache für den eingetretenen Schaden zu führen, so wäre er weithin rechtlos.”).

46. See, e.g., Miller, Paul B., A Theory of Fiduciary Liability, 56 McGill L.J. 235, 278 (2010)Google Scholar (defining fiduciary relationships as those in which one person “exercises discretionary authority to set or pursue practical interests (including matters of personality, welfare or right) of another”); Frame v. Smith, [1987] 2 S.C.R. 99, ¶ 60 (Can.) (Wilson J., dissenting) (defining a fiduciary relation as one where “(1) the fiduciary has scope for the exercise of some discretion or power; (2) the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and (3) the beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power”).

47. Davis v. Lockstone 1921 A.D. 153, 159–160 (S. Afr.).

48. DR 6:229–230, 386–387.

49. DR 6:237, 393.

50. DR 6:231, 388.

51. DR 6:237, 393.

52. Id.

53. DR 6:223, 378.

54. DR 6:236, 392.

55. DR 6:236, 392 (referring to J. Inst. 1.1.3).

56. Ripstein, Arthur, Force and Freedom: Kant's Legal and Political Philosophy (2009), at 135–136Google Scholar.

57. DR 6:238, 394.

58. DR 6:260, 412.

59. See DR 6:270, 421 (“An external object which in terms of its substance belongs to someone is his property (dominium), in which all rights in this thing inhere (as accidents of a substance) and which the owner (dominus) can, accordingly, dispose of as he pleases (ius disponendi de rea sua).”).

60. Ripstein, supra note 56, at 66–69.

61. DR 6:274, 424.

62. DR 6:247, 402 (enumerating three categories of external objects of choice as “1) a (corporeal) thing external to me; 2) another's choice to perform a specific deed (praestatio); and 3) another's status in relation to me”).

63. Ripstein, supra note 56, at 70–76 (describing “status” relations, of which the “legal relation between a fiduciary and a beneficiary is one such case”).

64. DR 6:255–256, 409 (“It is possible to have something external as one's own only in a rightful condition, under an authority giving laws publicly, that is, in a civil condition.”).

65. See DR 6:258–259, 411–412.

66. See, e.g., Berlin, Isaiah, Two Concepts of Liberty, in Four Essays on Liberty 118, 123 n.2 (1969)Google Scholar (“Law is always a fetter, even if it protects you from being bound in chains that are heavier than those of the law, say, some more repressive law or custom, or arbitrary despotism or chaos.”).

67. DR 6:316, 459 (“One cannot say: the human being in a state has sacrificed a part of his innate outer freedom for the sake of an end, but rather, he has relinquished entirely his wild, lawless freedom in order to find his freedom as such undiminished, in a dependence upon laws, that is, in a rightful condition, since this dependence arises from his own lawgiving will.”).

68. DR 6:242, 397 (“… [A] state of nature is not opposed to social but to a civil condition, since there can be society in a state of nature, but no civil society (which secured what is mine by public laws).”).

69. Byrd, B. Sharon & Hruschka, Joachim, Kant's Doctrine of Right: A Commentary (2012), at 174–175Google Scholar.

70. See PP 8:297, 296–297; DR 6:318, 461–462.

71. See PP 8:349, 322; DR 6:307, 452.

72. See, e.g., Stone v. Mississippi, 101 U.S. 814, 820 (1879) (“The power of governing is a trust committed by the people to the government… . The people, in their sovereign capacity, have established their agencies for the preservation of the public health and the public morals, and the protection of public and private rights.”); Black River Regulating Dist. v. Adirondack League Club, 121 N.E.2d 428, 433 (N.Y. 1984) (“… the power conferred by the Legislature is akin to that of a public trust to be exercised not for the benefit or at the will of the trustee but for the common good.”).

73. See Miller, Paul B., Justifying Fiduciary Duties, 58 McGill L.J. 969, 1012–1013 (2013)Google Scholar (“[F]iduciary power is not properly understood as connoting relative strength, ability, or influence … [but] ought to be understood as a form of authority,” or the ability to “render rightful conduct that would otherwise be wrongful.”).

74. DR 6:360, 495.

75. See Fox-Decent, Evan, Sovereignty's Promise: The State as Fiduciary (2011), at 44–47Google Scholar, 121–125.

76. Locke, John, Second Treatise of Government (Macpherson, C.B. ed., 1980) (1690)Google Scholar, at 64 (ch. 8, §120) (“By the same Act therefore, whereby any one unites his Person, which was before free, to any Commonwealth, by the same he unites his Possessions, which were before free, to it also; and they become, both of them, Person and Possession, subject to the Government and Dominion of the Commonwealth, as long as it hath a being.”).

77. See, e.g., Shue, Henry, Mediating Duties, 98 Ethics 687 (1988)CrossRefGoogle Scholar.

78. DR 6:348, 485.

79. Birks, Peter, The Content of Fiduciary Obligation, 34 Israel L. Rev. 3, 33 (2000)Google Scholar.

80. Id. at 37–38 (emphasis added).

81. Dworkin, Ronald, Sovereign Virtue: The Theory and Practice of Equality (2000)Google Scholar, at 226.

82. Id. at 227.

83. DR 6:318, 461.

84. DR 6:311, 455.

85. Id.

86. Public right contains “no further or other duties of human beings among themselves than can be conceived” at private right. DR 6:306, 451.

87. PP 8:358, 329.

88. Id.

89. DR 6:352, 489.

90. Burrows, Andrew S., Understanding the Law of Obligations: Essays on Contract, Tort and Restitution (1998), at 10–11Google Scholar.

91. See PP 8:359, 329–330 (approving the Chinese and Japanese policies of denying or severely restricting entry to European traders). See also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 276 (June 27) (“A State is not bound to continue particular trade relations longer than it sees fit to do so, in the absence of a treaty commitment or other specific legal obligation.”).

92. DR 6:238, 394. See also Niesen, supra note 2, at 92.

93. DR 6:262, 415.

94. Ripstein, supra note 56, at 372 (“Your body enables you to set and pursue purposes in space and time, but you must do so in a way that is consistent with the ability of other embodied rational beings to set and pursue their purposes in time and space.”).

95. Id. at 156.

96. PP 8:358, 329.

97. DR 6:262, 414.

98. DR 6:353, 489.

99. Id.

100. See Hallman v. Federal Parking Services, 134 A.2d 382, 384 (D.C. 1965), citing Calye's Case, 8 Co. Rep. 32a, 77 Eng. Rep. 520 (1584).

[O]nce the property of a guest is taken into the custody and control of the innkeeper the goods are considered infra hospitium and the liability for loss or destruction of the goods imposed is that of an insurer, unless the property is lost or destroyed by an act of God, the public enemy, or by fault of the guest.

See also Story, supra note 3, at 312 (§478 (4)).

101. Pisillo-Mazzeschi, Riccardo, The Due Diligence Rule and the Nature of the International Responsibility of States, 35 German Y.B. Int'l L. 9, 22 (1992)Google Scholar. See also Joanna Kulesza, Due Diligence in International Law (2016), at 224–226.

102. Kant says that the moral obligation to enter into an original contract means the state must provide “the means of sustenance to those who are unable to provide for even their most necessary natural needs.” DR 6:326, 468. This and the surrounding passages are unusual and differ from the general tenor of his legal theory. Instead, contemporary interpreters largely reconstruct the Kantian argument from more typical freedom-based premises. See, e.g., Ripstein, supra note 56, at ch. 9; Fox-Decent, Evan & Criddle, Evan J., The Fiduciary Constitution of Human Rights, 15 Legal Theory 301, 330–332 (2009)CrossRefGoogle Scholar; Weinrib, Ernest J., Poverty and Property in Kant's System of Rights, 78 Notre Dame L. Rev. 795, 810–821 (2002)Google Scholar.

103. Ripstein, supra note 56, at 279–281.

104. This term is used in a different sense than Kant does in his discussion of bankruptcy at DR 6:362, 497.

105. Ripstein, supra note 56, at 297.

106. Id. at 298.

107. Id.

108. Watson v. Cross, 63 Ky. (2 Duv.) 147 (1865). See Sherry, supra note 41, at 40–41.

109. 63 Ky. (2 Duv.), at 148.

110. Niesen, supra note 2, at 90.

111. Id. at 105.

112. Id. at 102, citing Katrin Flikschuh, Kant and Modern Political Philosophy (2000), at 152.

113. Niesen, supra note 2, at 103.

114. Id. at 104.

115. Corradetti, Claudio, Constructivism in Cosmopolitan Law: Kant's Right to Visit, 6 Global Const. 412, 414 (2017)Google Scholar (citations omitted).

116. Id. at 421.

117. Locke, supra note 76, at 19 (ch. 5, §27), cited at Corradetti, supra note 115, at 421–422.

118. Grotius, supra note 19, at 38:

If any person should prevent any other from taking fire from his fire or light from his torch, I should accuse him of violating the law of human society… . Why then, when it can be done without any prejudice to his own interests, will not one person share with another things which are useful to the recipient, and no loss to the giver?

119. Walla, Alice Pinheiro, Common Possession of the Earth and Cosmopolitan Right, 107 Kant-Studien 160, 176 (2016)Google Scholar.

120. Niesen, supra note 2, at 101–102.

121. Corradetti, supra note 115, at 421.

122. DR 6:265, 417, cited at Corradetti, supra note 115, at 418.

123. DR 6:235–236, 391–392 (arguing that to posit a “right of necessity” confuses the possession of a right or “objective impunity” with “subjective impunity”).

124. See Pinheiro Walla, supra note 119, at 174 (cosmopolitan right “presents itself under two different modes: (1) as basis of the acquired right of host peoples to their territory, enabling them to decline voluntary interaction …”); Niesen, supra note 2, at 105 (“[T]he most plausible justification for legal rights and obligations under hospitality lies in their enmeshment with the logic of first appropriation of territorial property.”). Niesen has modified this view in subsequent work. See infra note 133.

125. Niesen, supra note 2, at 103. See also Corradetti, supra note 115, at 423 (“[T]he instantiation of a public authority is not only required for the purpose of constraining, under the law, unilateral appropriations of the will through the creation of states, but also in view of compensating, as it were, those subjects who are excluded from such appropriations.”).

126. DR 6:246, 401.

127. Penner, James, On the Very Idea of Transmissible Rights, in Philosophical Foundations of Property Law 244, 256 (Penner, James & Smith, Henry eds., 2013)CrossRefGoogle Scholar.

128. On the fundamental reasons disqualifying territory as property, see Arthur Ripstein, Kant and the Law of War (Jun. 28, 2018) (unpublished manuscript, on file with author), at 54–55. Nevertheless, Ripstein resists the conclusion that territory is like body on the grounds that a state's “boundaries may change … through its own official acts, including wrongful ones,” such that “what was once the territory of one state may have become the territory of another.” Other reasons are the provisional nature of state possessions in the international state of nature (citing DR 6:350, 487) and the idea that wrongs against bodies involve the subordination of one person's choice to another's, while wrongs against territory involve one legal order being subordinated to another. Ripstein, supra, at 55–56. For brief responses to these points, see text accompanying notes 135–146.

129. PP 8:344, 318.

130. DR 6:323–324, 466.

131. PP 8:344, 318.

132. PP 8:351, 324. See also Ripstein, Arthur, Just War, Regular War, and Perpetual Peace, 107 Kant-Studien 179, 188 (2016)CrossRefGoogle Scholar (“If states are essentially private and subject to the claims of private right, disputes about them will multiply, and war becomes a means of acquisition.”).

133. See Niesen, Peter, Restorative Justice in International and Cosmopolitan Law, in Kant and Colonialism: Historical and Critical Perspectives 170 (Flikschuh, Katrin & Ypi, Lea eds., 2014)Google Scholar; Niesen, Peter, “What Kant Would Have Said in the Refugee Crisis”, 50 Danish Y.B. Phil. 83, 91–96 (2017)Google Scholar.

134. PP 8:347, 321; DR 6:350, 487. Discussed in Niesen, What Kant Would Have Said, supra note 133, at 95.

135. PP 8:347, 321 (“[H]e may not postpone to a nonexistent date (ad calendas graecas, as Augustus used to promise) putting into effect the law, for example, to restore in accordance with number 2 the freedom of certain states deprived of it, and so not restore it… .”).

136. DR 6:354, 490. Contrast this with Locke's infamous claim that all persons have a right to terra nullius—defined broadly as not just unoccupied but also uncultivated land. Locke, supra note 76, at 21–23 (ch. 5, §§32, 36).

137. Ripstein, Arthur, Kant's Juridical Theory of Colonialism, in Kant and Colonialism: Historical and Critical Perspectives 145, 165 (Flikschuh, Katrin & Ypi, Lea eds., 2014)Google Scholar. See also Ajei, Martin & Flikschuh, Katrin, Colonial Mentality: Kant's Hospitality Right Then and Now, in Kant and Colonialism: Historical and Critical Perspectives 221, 246 (Flikschuh, Katrin & Ypi, Lea eds., 2014)Google Scholar:

For all [visitors] know, stateless peoples do in fact possess political institutions… . This stance expresses an epistemic modesty against which the cautiously formulated right to attempt contact makes good sense. In our dealings with distant strangers … [w]e should accept that they are agents in their own right, with reasons for action, about which we are likely to know and understand very little.

138. DR 6:354, 490.

139. DR 6:359, 494–495. On the rule that no free man can be viewed as owning his limbs, see Dig. 9.2.13.8 (Ulpian, Ad Edictum 18).

140. DR 6:359–360, 495.

141. Island of Palmas (Neth./U.S.), 2 R.I.A.A. 829, 867–869 (Perm. Ct. Arb. 1928).

142. Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, ¶¶ 63–67 (Dec. 22); Land, Island and Maritime Frontier Dispute (El Sal. v. Hond.; Nicar. intervening), 1992 I.C.J. 351, ¶¶ 223–224 (Sept. 11). However, the standards for acquiescence can be quite lax. In Pedra Branca the court held that sovereignty over a disputed island had passed from Malaysia to Singapore effectively by silence. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, (Malay. v. Sing.) 2008 I.C.J. 12, ¶ 121 (May 23).

143. Frontier Dispute, 1986 I.C.J., at ¶ 20.

144. Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 473, ¶ 107 (Feb. 24); Land, Island and Maritime Frontier Dispute, 1992 I.C.J., ¶¶ 40, 57–58.

145. Lauterpacht, Hersch, Property Relations Between States. State Territory, in International Law: Volume 1, The General Works: Being the Collected Papers of Hersch Lauterpacht 367, 370 (Lauterpacht, Eli ed., 1970)Google Scholar.

146. Michelle Bennett & Jocelyn Harewood, Vanuatu (2003), at 14.

147. Madeline Gleeson, Offshore: Behind the Wire on Manus and Nauru (2016), at 28 (ch. 5).

148. The author was herself unable to visit the RPCs personally. A running theme of the book is her being sent from pillar to post by the different state authorities claiming that someone else was in charge.

149. Gleeson, supra note 147, at 25 (“Refugees could be a resource too, the small nation [Nauru] would soon discover… . Despite the MOU's emphasis on ‘joint cooperation’ to combat people smuggling, it was a commercial transaction – not a regional responsibility-sharing arrangement.”).

150. Id. at 38–39.

151. Huber, Jakob, Cosmopolitanism for Earth Dwellers: Kant on the Right to Be Somewhere, 22 Kantian Rev. 1, 8 (2017)CrossRefGoogle Scholar. See also Byrd & Hruschka, supra note 69, at 128 (“The place I have a right to be is not any permanent place, but rather some place or other on the earth. The right to a place on the earth is thus not a right to a specific place, but a right to some place.”).

152. Niesen, supra note 2, at 102.

153. See Entick v. Carrington, (1765) Howell's St. Tr. 1029, 1066 (K.B.) (Eng.) (“By the laws of England every invasion of private property, be it ever so minute, is a trespass.”); Basely v. Clarkson (1681) 3 Lev. 37 (Eng.) (plaintiff given judgment for two shillings against adjoining neighbor who mistakenly mowed grass on plaintiff's land); Severn Trent Water Ltd v. Barnes [2004] EWCA (Civ) 570, ¶ 5 (Eng.) (damages awarded for “trivial, accidental and unintentional” entry onto land).

154. Smith v. Stone (1647) Sty. 65 (Eng.).

155. Taylor v. Whitehead (1781) 99 Eng. Rep. 475 (K.B.) (Eng.).

156. See David L. Carey Miller, Public Access to Private Land in Scotland, 15 Potchefstroom Electronic L.J. / Potchefstroomse Elektroniese Regsblad 119, 120 (2012) (“… [T]he landowner has an enforceable right to require a trespasser to leave but there is no civil claim for the act of trespass per se as there is, on the basis of the ‘tort of trespass,’ in English law.”); William W. Buckland & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline (2d ed. 1965), at 102 (trespass actionable in Roman law only if the owner “had expressly forbidden entry or if it was an enclosure, such as a dwelling-house, into which everyone knew that free entry would be forbidden… .”).

157. See DPP 23:172–173:

So erkennt der beduinische Araber bey einem vor seinem Zelt sich einfindenden Fremden die Pflicht der Wirthbarkeit selbst wenn er nach dem friedlichen Empfang ihn von sich abweiset. Auf diese Wirthbarkeit kann der Fremdling Anspruch machen (nicht aber auf ein Gastrecht als wozu ihn sein Wirth besonders einladen müßte) als auf ein Besuchsrecht welches allen Menschen vermöge der Freyheit des ihnen von der Natur angewiesenen Raumes zukommt.

In the published version, Kant removes these approving remarks about the Bedouins and turns them into exemplars of Unwirtbarkeit who regard every “approach to nomadic tribes as a right to plunder them.” PP 8:358, 329.

158. Dig. 49.1.4.5 (Macer 1, De Appellationibas) (“Procuratorem alium procuratorem facere non posse.”). An equivalent common law maxim is delegata potestas non potest delegare.

159. Dig. 47.10.1.2 (Ulpian, Ad Edictum 56). See also DR 6:328–329, 470–471.