Cosmopolitanism: From the Kantian Legacy to Contemporary Approaches [1 ed.] 9783428584604, 9783428184606

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Beiträge zur Politischen Wissenschaft Band 198

Cosmopolitanism From the Kantian Legacy to Contemporary Approaches

Edited by Cristina Foroni Consani Joel T. Klein Soraya Nour Sckell

Duncker & Humblot · Berlin

CRISTINA FORONI CONSANI, JOEL T. KLEIN, SORAYA NOUR SCKELL (Ed.)

Cosmopolitanism

Beiträge zur Politischen Wissenschaft

Band 198

Cosmopolitanism From the Kantian Legacy to Contemporary Approaches

Edited by

Cristina Foroni Consani Joel T. Klein Soraya Nour Sckell

Duncker & Humblot · Berlin

This work was financed by Portuguese funds provided by FCT – the Foundation for Science and Technology (Fundação para a Ciência e a Tecnologia, I.P.), under the project PTDC/FER-FIL/30686/2017, “Cosmopolitanism: Justice, Democracy and Citizenship without Borders” (Centre for Philosophy of the University of Lisbon and CEDIS of the NOVA School of Law of the Universidade NOVA de Lisboa). It also received financial support in part from the CNPq (National Council for Scientific and Technological Development, Conselho Nacional de Pesquisa e Desenvolvimento), under the project Universal 439161/2018-5, “Fundamentos modernos da democracia”, and from the Coordenação de Aperfeiçoamento de Nível Superior – Brasil (CAPES), finance code 001, under the project PAEP/88881.359878/2019-01.

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de .

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Contents Cristina Foroni Consani, Joel T. Klein and Soraya Nour Sckell Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Part I. Cosmopolitanism in Modern Philosophy Maria Isabel Limongi David Hume and “difference” as a cosmopolitan principle . . . . . . . . . . . . . . . . .

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Delamar José Volpato Dutra and Cláudio Ladeira de Oliveira There are no limits to the rights of a state against an unjust enemy . . . . . . . . . .

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Fernando M. F. Silva Kant and the birth of the pragmatic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Henny Blomme Kant on the (im)possibility of attaining perpetual peace . . . . . . . . . . . . . . . . . . .

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Joel T. Klein Prudential reasoning in Kant’s legal cosmopolitanism . . . . . . . . . . . . . . . . . . . . .

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Maria Borges Kant on cosmopolitan law and the possibility of refugee rights . . . . . . . . . . . . .

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Vinicius de Figueiredo Two moments of Kantian cosmopolitanism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Giorgia Cecchinato Fichte’s Closed Commercial State from a cosmopolitan perspective: Identifying agreement in spite of apparent contradictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Part II. Cosmopolitanism in Contemporary Philosophy Bethania Assy and Rafael Rolo Shaman cosmopolitanism: Amerindian resistance and perspectivism . . . . . . . . . 129 Celso de Moraes Pinheiro Citizenship beyond borders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Charles Feldhaus Cosmopolitism in Habermas: with and beyond Kant . . . . . . . . . . . . . . . . . . . . . . 173

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Cristina Foroni Consani A constitution without a state? An analysis of the Habermasian proposal for global politics without a world government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Darlei Dall’Agnol Global bioethics and the need for better international governance . . . . . . . . . . . 203 David Hoyos García Cultural cosmopolitics in Latin America: the case of Cumbia . . . . . . . . . . . . . . 217 Marco Antonio Valentim Cosmology and politics in the Anthropocene . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Milene Consenso Tonetto Global Ethics and Climate Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 Nythamar de Oliveira and João Henrique Salles Jung Is a cosmopolitan world society possible? A dialogue between Critical Theory and the English School . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Thomas Bustamante Is there an objective standard of salience for International Law? . . . . . . . . . . . . 285 Notes on contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

Introduction1 By Cristina Foroni Consani, Joel T. Klein and Soraya Nour Sckell Contemporary cosmopolitan theories have very different aims and approaches. However, all of them attempt to respond to current developments in the global scene concerning the status of the human being deemed a citizen of the world (cosmopolitan) rather than of a particular State. In Social and Political Philosophy, many authors2 have addressed this question in the great debate between cosmopolitan liberalism and communitarianism, as well as in critical reflections on racism, nationalism, xenophobia, and in issues related to minorities, indigenous people, migrants, refugees, asylum-seekers, stateless and displaced persons. In international law, cosmopolitan theories include authors who outline the status of the human person as the fundamental subject of international public life (Cassese3), regardless of one’s affiliation to a state, in opposition to state-centered internationalists. In international relations theory, cosmopolitan approaches review many paradigms, such as the network-society (Castells4, Harvey5, Lash, Urry6, Cox7), globalization (Giddens8, Sassen9, Bell10, Toffler11), transnationality (Levitt12, Smith13, Guarnizo, Portes14) and world-economy theories (Wallerstein15, Arrighi16), none of which consider the 1 The first part of this introduction is based on Sckell (2020a), Sckell (2020b) and Sckell (2021). 2 See for instance Appiah (2006), Archibugi (2008), Balibar (2018), Beck (2006), Benhabib (2006), Brock (2009), Brown (2009), Brown/Held (2010), Caney (2018), Delanty (2012), Derrida (1997), Habermas (2001), Hayden (2005), Held (2010), Jones (1999), Kleingeld/ Brown (2006), Kymlicka/Straehle (1999), Moellendorf (2002), Santos/Rodríguez-Garavito (2005), Scheffler (2008), Schuett/Stirk (2015), Singer (2002). 3 Cassese (2008). 4 Castells (2012). 5 Harvey (2009). 6 Lash/Urry (1987). 7 Cox (2018). 8 Giddens (2011). 9 Sassen (2014). 10 Bell (2016). 11 Toeffler (1991). 12 Levitt/Khagram (2007). 13 Smith/Eade (2017). 14 Portes/Guarnizo/Landolt (2003). 15 Wallerstein/Chase-Dunn/Suter (2016).

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state as the main actor in the global scene. Instead, global politics replaces international and transnational relations), and theories like “glocalisation” (the global in the local) and “multi-level analysis” appear in efforts to understand the interconnectedness between the global and the local. In sociology and the political sciences, cosmopolitanism considers, in addition to the political logic of the state, the logic of economic, cultural and religious orders and that account for how non-state actors challenge the prerogative of the state as the main actor in the international scene (Beck17, Held18, Archibugi19), and how citizenship can be constructed across borders (Falk20, Balibar21). Across these debates, five main dimensions of the concept of cosmopolitanism can be identified. The first dimension of cosmopolitanism concerns the ethical horizon of building a cosmopolitan worldview. Since its formulation in Antiquity, cosmopolitanism has represented the moral ideal of a universal community of human beings considered apart from their links to particular communities. Cosmopolitanism, in this sense, maintains as its ethical horizon the construction of a cosmopolitan self. But this ideal face within the psyche exclusive private bonds such as nationalism, racism, sexism, and all forms of discrimination attached to identity issues. It is then necessary to analyse the conditions of cosmopolitanism in a context where violence is supposedly produced by the imposition of exclusive identities to those considered to belong to a “we” at the exclusion of all others. The underlying question is: is personal identity a concern for public life?22 As Balibar23 proposes, one response determines that public space must reflect universal values and take a neutral stance on social and cultural elements of identity in order to secure plurality (Rawls24). A second response argues that politics and justice always legitimize a certain degree of personal identity by making invisible, devaluing or stigmatizing others. Justice necessarily requires the recognition of particularities (Taylor25, Kymlicka26). A third response focuses on “translation” as a prerequisite for effective universalism, which depends on the ability to establish successful communication without having pre-established common codes (Balibar).

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Arrighi (1994). Beck (2006). 18 Held (2010). 19 Archibugi (2008). 20 Falk (2016). 21 Balibar (2018). 22 Renault (2004). 23 Balibar (2010). 24 Rawls (2002). 25 Taylor (1994). 26 Kymlicka/Straehle (1999). 17

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While cosmopolitan liberalism is based on rationality devoid of affection (Rawls27, Habermas28), other cosmopolitanism approaches also consider the role of emotional motivation in moral and political deliberation. These approaches question the devaluation of lives that are deemed dispensable – those who we ‘let die’ and for whom we do not mourn (Butler29). A second question addressed by cosmopolitan theories is: how might we give local democracy a cosmopolitan horizon? Cosmopolitan theories aim to analyse the conditions by which even a territorially limited local policy considers its consequences for human beings (including future generations) seen as an entirety rather than as members of a certain state. According to these theories, local politics in particular must express cosmopolitan values by respecting the environment and the civil, political, social, economic and cultural human rights of the inhabitants of a certain territory, regardless of their citizenship. Cosmopolitan theories consider that a democratic state must not wait for the development of an external cosmopolitan law30. The first goal of cosmopolitanism is therefore the cosmopoliticisation of local democracy. In order to be truly democratic, the government of a group, according to the principle of popular sovereignty, must include the whole of humanity (including future generations) in its considerations. It is crucial is that a democracy respects the civil rights of political community members (such as the right to vote), the fundamental rights of all those living in their territory and the human rights of all people in the world, regardless of their citizenship. This is the profound sense in which the interrelation between constitutional, international, and cosmopolitan law must be understood. A third issue addressed by cosmopolitan theories is: how might the global system be democratised? How should principles and practices that have been created within the framework of the nation-state be transposed into this global system? How can new forms of democracy be developed with something other than a territorial foundation? How can we move beyond national citizenship if there is no formal cosmopolitan citizenship? Which plausible conception of organization, praxis and historical transformation would then correspond to these new forms? There is no democratic representation in the most influential international organizations or global institutions of governance. On the other hand, there are a number of forms of association in civil society that transcend borders, creating new forms of citizenship – citizenship in network, in contrast to territorial citizenship. Modern political theory conceived that democratic citizenship and legitimate representation can only be fully exercised within the framework of local political institutions. However, notions of justice have been developing increasingly in recent years to conceive new forms of democracy and citizenship beyond the state as well. If the state still makes strong, 27

Rawls (2002). Habermas (2001). 29 Butler (2009). 30 Menke/Pollmann (2009), Pogge (2002). 28

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Introduction

imposing changes in the global order, in some domains the behaviour of individual actors can decisively shape global politics Cosmopolitanism then becomes, as Balibar31 states, “cosmopolitics”. Cosmopolitan citizenship does not exist as a legal and political status but as a practice of crossborder associations of individuals in any form of organization, institutionalized or not. Cosmopolitanism provides a conception of cosmopolitan citizenship that differs from those of “world society”, “world public sphere”, or “collective conscience”, since it focuses on political participation and not on consensus. It also provides a reformulation of the liberal theory of democratic representation: transnational civil associations do not have the moment of “authorization”, but they do have the moments of “control” and “accountability”. A fourth issue addressed by cosmopolitan theories relates to the idea of a Cosmopolitan Law. This not only concerns the consecration of the individual as a subject of international law, especially regarding human rights (“individual petition” by the European Court of Human Rights) and international criminal law (“individual responsibility” by the International Criminal Court), but also relates to areas such as minority rights, environmental law and the common heritage of humanity. Some authors contend that the notion of international law would even be inappropriate for nominating relations in which the individual becomes the main subject of law. This law is not only an international law governing relations between states, but a cosmopolitan law, which gives an individual a power against the state or confers power on international forums against individuals regardless of their state affilitations. In some respects, the individual’s status as a subject of international law is compatible with state-centred theories of international law. In the case of cosmopolitan rights and duties, however, it is necessary to carry out a thorough review of all legal categories based on state sovereignty constructed in the last two hundred years. This cosmopolitan law appears as autonomous, neutral, based on the rationality of morality and is thus worthy of universal recognition as a transcendental principle standing above its historical forms. But it cannot be sufficiently explained either as a product of universal reason or as the imposition of a dominant ideology. It spawns from a long history of “cosmopolitan citizenship in exercise” as well as from its cumulative theoretical systematization. Cosmopolitan law also, reciprocally, provides the criteria of legitimacy in assessing the exercise of cosmopolitan citizenship. This can delegitimize associations that claim a non-cosmopolitan identity, that oppress their members and exclude others. Cosmopolitan theories also address the following questions: Given that there is no precise concept about how to protect the human person against its own governments, what is the responsibility of the international community for individuals suffering in another place? What kind of intervention is possible, who can intervene and what can they do? 31

Balibar (2010); Gaille-Nikodimov (2002).

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A fifth issue of cosmopolitan theories concerns the vision of the universe as a whole, the place that each natural phenomenon occupies in this universe, and the relation of the parts between themselves and with the universe in its entirety. This dilemma implies discussing the place that the human being – as one being among others – occupies in this universe and deliberating the consequences of its actions, which can be translated into ecological and environmental concerns. Modern anthropocentrism, which claims human superiority over nature, legitimizes a destructive mode of production and consumption of nature, that relegates nature to a mere means for the attainment of human ends. The ecological crisis today reaffirms the interdependence between all natural beings, and the insufficiency of a cosmopolitan theory that does not consider the status of nature. Consumer accountability is often demanded. However, it is also necessary to devise a socio-political structural transformation and develop a new ecological consciousness. This presupposes another way of thinking about the relationship between human being and nature, and also implies the possibility of imputation of individual criminal responsibility to leaders of legal entities in case of environmental crimes. *** This broad spectrum of approaches to cosmopolitanism was debated at the “1st International Colloquium on Cosmopolitanism: justice, democracy and citizenship without borders” in Curitiba, Brazil in 2019. This volume brings together the papers presented and discussed at that Colloquium. The first section analyses modern cosmopolitan theories, and Kantian theories in particular, which are applied to issues such as a just warfare (chapter 2), the relationship between anthropology and pluralism (chapter 3), the possibilities and difficulties of lasting peace (chapter 4), the relation between prudence and law regarding juridical cosmopolitanism (chapter 5), the potential rights of refugees (chapter 6), and the relation between cosmopolitanism and history (chapter 7). Chapter 1 investigates the way Hume and Smith ethical and social perspectives frame international relations, while chapter 8 is dedicated to Fichte and the question of commerce. The second section explores cosmopolitanism from contemporary philosophical and interdisciplinary perspectives. Following a Kantian line, chapters 10, 11 and 12 consider Habermas’s proposal for an international, politico-juridical organization and the potential practice of cosmopolitan citizenship. Chapter 17 then analyses Honneth’s critique of Habermas. Chapter 18 applies Dworkin’s theory of law to international relations, particularly the patterns for interpreting abstract norms of international law. Global health, pandemics, endemics, migration, climate change and extreme poverty are addressed directly in chapters 13 and 16. A broader, interdisciplinary approach is taken in chapter 14 to study Amerindian traditions in music, while

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chapters 9 and 15 investigate the cosmological and environmental perspectives of David Kopenawa and Eduardo Viveiros de Castro. We would like to thank Tamara Caraus for having assisted with editing the book and Sophie Chauhan for having proofread some sections. We would also like to thank the following partners who offered us their cooperation: the Federal University of Paraná (Brazil), the Centre for Philosophy of the University of Lisbon and the CEDIS of the NOVA School of Law of the Universidade NOVA de Lisboa. Finally, we would like to thank the “Conselho Nacional de Pesquisa e Desenvolvimento” (CNPq Brazil), the “Coordenação de Aperfeiçoamento de Nível Superior” (CAPES Brazil) and the Foundation for Science and Technology (FCT Portugal) for having financially supported this publication. References Appiah, Kwame Anthony: Cosmopolitanism – Ethics in a World of Strangers, New York 2006. Archibugi, Daniele: The Global Commonwealth of Citizens, Princeton 2008. Arrighi, Giovanni: The Long Twentieth Century, London 1994. Balibar, Etienne: Cosmopolitisme, internationalisme, cosmopolitique, in: Bertrand Ogilvie/ Diogo Sardinha/Frieder Otto Wolf (eds.), Vivre en Europe. Philosophie, politique et science aujourd’hui, Paris 2010, pp. 19 – 49. Balibar, Etienne: Secularism and Cosmopolitanism, Columbia 2018. Benhabib, Seyla: Another Cosmopolitanism, Oxford 2006. Beck, Ulrich: Kosmopolitisierung ohne Kosmopolitik: Zehn Thesen zum Unterschied zwischen Kosmopolitismus in Philosophie und Sozialwissenschaft, in: Helmuth Berking (ed.), Die Macht des Lokalen in einer Welt ohne Grenzen, Frankfurt/M./New York 2006, pp. 252 – 270. Bell, Duncan: Reordering the World: Essays on Liberalism and Empire, Princeton 2016. Brock, Gillian: Global Justice: A Cosmopolitan Account, Oxford 2009. Brown, Garrett Wallace/Held, David (eds.): The Cosmopolitanism Reader, Cambridge 2010. Brown, Garrett Wallace: Grounding Cosmopolitanism: From Kant to the Idea of a Cosmopolitan Constitution, Edinburgh 2009. Butler, Judith: Frames of War: When is Life Grievable?, New York 2009. Caney, Simon: On Cosmopolitanism, Oxford 2018. Cassese, Antonio: The Human Dimension of International Law, Oxford 2008. Castells, Manuel: Networks of Outrage and Hope, Cambridge 2012. Cox, Michael: The Post Cold War World, London 2018. Delanty, Gerard (ed.): Routledge Handbook of Cosmopolitanism Studies, New York 2012. Derrida, Jacques: Cosmopolites de tous les pays, encore un effort!, Paris 1997.

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Falk, Richard: Power Shift. On the New Global Order, London 2016. Gaille-Nikodimov, Marie: La constitution est elle-même un terrain de lutte, Paris 2002. Giddens, Anthony: The Politics of Climate Change, Cambridge 2011. Habermas, Jürgen: The Postnational Constellation: Political Essays, Cambridge 2001. Harvey, David: Cosmopolitanism and the geographies of freedom, New York 2009. Hayden, Patrick: Cosmopolitan Global Politics, Aldershot 2005. Held, David: Cosmopolitanism: Ideals and Realities, Cambridge 2010. Jones, Charles: Global Justice: Defending Cosmopolitanism, Oxford 1999. Kleingeld, Pauline/Brown, Eric: Cosmopolitanism, in: Stanford Encyclopedia of Philosophy 2006. Kymlicka, Will/Straehle, Christine: Cosmopolitanism, Nation-States, and Minority Nationalism. European Journal of Philosophy 1999, 7 (1): 65 – 88. Lash, Scott/Urry, John: The End of Organized Capitalism, Cambridge 1987. Levitt, Peggy/Khagram, Sanjeev: The Transnational Studies Reader, New York 2007. Menke, Christopher/Pollmann, Arnd: Philosophie der Menschenrechte, Frankfurt am Main 2007. Beitz, Charles R.: The Idea of Human Rights, New York 2009. Moellendorf, Darrel: Cosmopolitan Justice, Boulder 2002. Portes, Alejandro/Guarnizo, Luis/Landolt, Patricia: La globalizacion desde abajo, Cidade do Mexico 2003. Rawls, John: The Law of Peoples (1993), Cambridge 2002. Renault, Emmanuel: L’expérience de l’injustice. Reconnaissance et clinique de l’injustice, Paris 2004. Santos, Boaventura de Sousa/Rodríguez-Garavito, César (eds.): Law and Globalization from Below: Towards a Cosmopolitan Legality, Cambridge 2005. Sassen, Saskia: Expulsions: Brutality and Complexity in the Global Economy, Cambridge 2014. Sckell, Soraya Nour: Critical cosmopolitanism. Beyond the opposition between a philosophical and a sociological one, in: Andrej Krause & Danaë Simmermacher (eds.), Denken und Handeln. Perspektiven der praktischen Philosophie und der Sprachphilosophie, Berlin: Dunker & Humblot, 2020a, pp. 172 – 189. Sckell, Soraya Nour: The five dimensions of critical cosmopolitanism: A conceptual study. Tà katoptrizómena. Das Magazin für Kunst/Kultur/Theologie/Ästhetik. V.22, Heft 127 – Weltbegebenheiten. Dez/2020b. Sckell, Soraya Nour: “Critical Cosmopolitanism and Sovereignty”, in: André Santos Campos and Susana Cadilha (eds.): Sovereignty as Value. Lanham, MD: Rowman & Littlefield, 2021. Scheffler, Samuel: Cosmopolitanism, Justice & Institutions. Daedalus 2008, 137 (3): 68 – 77.

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Schuett, Robert/Stirk, Peter M. R. (eds.): The Concept of the State in International Relations: Philosophy, Sovereignty, and Cosmopolitanism, Edinburgh 2015. Singer, Peter: One World: The Ethics of Globalization, New Haven 2002. Smith, Michael Peter/Eade, John (eds.): Transnational Ties: Cities, Migrations, Identities, London 2017. Taylor, Charles: Multiculturalism: Examining the Politics of Recognition, Princeton 1994. Toeffler, Alvin: Powershift: Knowledge, Wealth, and Violence at the Edge of the 21st Century, New York 1991. Wallerstein, Immanuel/Chase-Dunn, Christopher/Suter, Christian (eds.): Overcoming Global Inequalities, New York 2001.

Part I. Cosmopolitanism in Modern Philosophy

David Hume and “difference” as a cosmopolitan principle By Maria Isabel Limongi Kant places Cosmopolitanism in the domain of Law. For him, dealing with Cosmopolitanism is dealing with cosmopolitan Law (jus cosmopoliticum)1: “The right of a stranger not to be treated as an enemy when he arrives in the land of another”2, or the right to “try to be in community with everyone, and to that end, explore all regions of the earth”3. It is a necessary complement to political Law and the Law of the people, and Kant zealously distinguishes it from the ethical principle of philanthropy. He emphasizes that it is a legal principle4, underlying the idea of a complete peaceful Community, which, in turn, is a necessary complement of a Republican Constitution Idea. According to Kant, recognizing the cosmopolitan law’s rationality is not enough to its realization. In order to prevent it from being seen as a “fantastic and extravagant representation”5, Kant relates it to the gradual and irreversible process of men circulation on Earth, to the more and more intense process of exchange, transit, and commerce among peoples. He thus shifts the theme from the domain of law, in which it takes root and to which it belongs according to the architecture of reason, to the domain of anthropology and history, where occurs the effective interactions between men. This is precisely the domain on which Hume and Adam Smith – not Kant – founded morality and Law, or jurisprudence, according to their vocabulary6. Those authors thought the historical processes of commercial society expansion from a factual point of view, taking human passions and nature as their starting point. According to them, human passions and nature would correspond to processes of moral refinement and enlargement of perspectives, concatenation and integration of points of view, which would be not only economic, as often emphasized, but of ethical and legal nature as 1

Kant (2008), p. 137. Kant (2008), p. 148. 3 Kant (2011), p. 324. 4 Kant (2011), p. 323. 5 Kant (2011), p. 151. 6 According to Adam Smith, Jurisprudence is “the science which inquires the general principles which ought to be the foundations of the laws of all nations” (Smith 1982(b), p. 397). Hume and Smith, in the wake of Grotius, thought about the principles of law as they operate in history. And, like Montesquieu, they developed Grotius’ jurisprudence towards an investigation of positive, social and political institutions. They thought about the links between Law and social history. 2

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David Hume and “difference” as a cosmopolitan principle

well7. This is the domain in which I would like to situate the theme, having Hume and Adam Smith as references. The importance of this retreat from Law to cosmopolitan Ethics and jurisprudence, dealing with historical and effective processes of economic, moral and legal integration between individuals, groups and peoples, is that, through that retreat, it is possible to circumvent certain difficulties posed by the Kantian idea of a “public right of humanity in general”8. In addition to difficulties raised and discussed by Kant himself (how to think Law beyond the State?), the claim for a “right of humanity” has become increasingly controversial. Some see it as indispensable, given the huge contingent of deterritorialized people, refugees, marginalized people and exterminated people, to whom has to be offered some legal guaranty, at least the right to have rights9; others think of it as an illusion, for Law, once thought in the logic of the State as a closed normative system built on the Sovereignty, involves necessarily an act of exclusion, precisely when it intends to be universal. Law, as a closed system, has to leave someone out – if not men, the non-men and dehumanized people10. However, if Law can be described as a closed domain, Ethics, on the other hand, as it is thought by Hume and Adam Smith, as a system of integration of different points of view, interests and perspectives, may be regarded as an open domain, a pulsating system – actually a system11 of ideas forming a certain global culture – which is in constant expansion or contraction. That is why it is important to deal with Cosmopolitanism in the domain in which these authors placed it when thinking about the logic of the processes by which subjects interact and integrate (or not) their perspectives. According to Kant himself, without those processes, the idea of a cosmopolitan law would be nothing but a chimera. I believe that in this field lies the answer to the question about the extension of the domain of Law and the criteria that governs the decision about who is inside and who is outside that domain (who is and who is not a subject of Law). This is not a matter of a purely arbitrary stance, as the theorists of sovereign decision proclaim. It actually responds to patterns of reciprocal recognition and depends on how the points of view and perspectives integration and/or exclusion processes take place. In other words, the extension of the domain of Law depends on the extension of the domain of Ethics as thought by Hume and Smith, i. e., as a system of opinions and judgments formed by psychological and social interaction processes.

7

Cf. Rothschild (2001). Kant (2008), p. 151. 9 See, for example, Colliot-Thélène (2011). 10 As it seems to me the core of Agamben’s argument (2004). 11 On the notion of system in Hume and Smith, as well as the 18th century in general, see Pimenta (2018). 8

Maria Isabel Limongi

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My focus hereinafter will be on Hume. Smith will serve only as a comparative reference in order to illuminate a certain aspect of the Humean thought concerning the logic of these integration processes: Hume considers them from a perspective of difference, in contrast to Smith, who thinks of them from a perspective of identity. This feature of the Humean Enlightenment deserves attention, as it is not uncommon to see the Enlightenment project of moral and legal integration, i. e. the cosmopolitan project, being rejected as a whole, on the charge of embracing an empty universalism, disregarding for differences, and oversighting of conflicts. We will see that this is not the case with Hume. Hume offers a promising way to face the difficulty posed by questions on the cosmopolitan moral and legal community extension. The path to be taken is to leave the question open and avoid closing the domain. *** What I have so far called “points of view integration’s processes” is called by Hume and Adam Smith “sympathy”. It is worth mentioning the long passage in which Hume presents the phenomenon for the first time in the Treatise of Human Nature: “No quality of human nature is more remarkable, both in itself and in its consequences, than that propensity we have to sympathize with others, and to receive by communication their inclinations and sentiments, however different from, or even contrary to our own. This is not only conspicuous in children, who implicitly embrace every opinion propos’d to them; but also in men of the greatest judgement and understanding, who find it very difficult to fallow their own reason or inclination, in opposition to that of their friends and daily companions. To this principle we ought to ascribe the great uniformity we may observe in the humours and turn of thinking of those of the same nation; and ’tis much more probable, that this resemblance arises from sympathy, than from any influence of the soil and climate, which, tho’ they continue invariable the same, are not able to preserve the character of a nation the same for a century together. A good-natur’d man finds himself in an instant of the same humour with his company; and even the proudest and most surly take a tincture from their countrymen and acquaintance. A chearful countenance infuses a sensible complacency and serenity into my mind; as an angry or sorrowful one throws a sudden damp upon me. Hatred, resentment, esteem, love, courage, mirth and melancholy; all these passions I feel more from communication than from my own temper and disposition. So remarkable a phaenomenon merits our attention, and must be trac’d up to its first principles”12.

This excerpt’s interest is in the very object of investigation that it circumscribes: the phenomenon “to receive by communication the inclinations and sentiments” of others, more precisely, the inclinations and sentiments of those with whom we coexists (“the friends and daily companions”), the “remarkable quality” that we call Sympathy. Sympathy allows a much better explanation for customs similarity than Montesquieu’s explanation by climate, as Hume here proclaimed eight years before The 12

Hume (1989), pp. 316 – 317.

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David Hume and “difference” as a cosmopolitan principle

Spirit of the Laws’ publication. According to Hume, it is not the same geographic and historical coordinates that make men of a same social group to resemble each other, but the fact that they live together. Behind the emphasis on conviviality, there is a theory of the subject and affect: One is who one is and feel what one feels as a function of the others (“hatred, resentment, esteem, love, courage, mirth and melancholy; all these passions I feel more from communication than from my own temper and disposition”). The idea is that the simple fact of being in a relationship with others, i. e. conviviality, mechanically leads to a concatenation of points of view, if not by a progressive convergence of perspectives, at least by a coalition of interests and political agreements that mediate the differences. Conviviality concatenates us and inserts us into a system of moral and legal relations that tends to adjust the parts and polish the differences – an idea to which Kant would return in Idea for a Universal History with a Cosmopolitan Point of View, expressed by the famous formulation “unsociable sociability of men”13. We will see that for Hume, as for Kant, a mechanical process is not enough to produce a regime of reciprocal cooperation, which requires reflection and knowledge to be brought to fruition successfully. Sympathy is mobilized in Book III of Treatise of Human Nature and later in An Enquiry concerning the Principles of Morals to explain the genesis of morals, understood as a language or a common code for conduct assessment. The ability to use a moral language is the ability to evaluate the conduct and actions in a general and comprehensive way and appraise the relevant effects not only upon the appraiser, but upon others, in general. It is the sympathy that endows us with this broad perspective that forming a moral judgment requires. Sympathy, therefore, operates to make up and integrate different normative points of view. This is its most remarkable effect14. Most important however is that the Humean concept of sympathy allows us to explain not only that we are sensitive to what is happening with others, and capable of adopting their points of view and share their values, but also, and concurrently, that it is difficult to share others points of view and values when they differ significantly from ours and from those of our original group. Thus, while living together brings us closer to those with whom we interact, it keeps us away from those with whom 13

Kant (2003), p. 8. Hume is a consequentialist. Although that label suits him, it does not seem appropriate to classify Hume as a utilitarian. His ethics is distinguished from Bentham’s and Mill’s ethics in a fundamental point: For Hume, it is not a matter of searching in the principle of utility for a “fundamental law”, a rational criterion or a precise rule for moral action, in a calculation that allows us to decide which action undertake among possible alternatives (Cf. Mill (2000), I). On the contrary, the Humean sympathy theory intentionally leaves open the value of utility, and emphasizes how imprecise and equivocal this criterion is. According to Hume, utility is expressed in many ways and according to different perspectives, and the moral problem consists precisely in knowing how to adjust judgments and integrate perspectives into a broader conception of common utility. Hume is interested in the judgment formation process and the virtue of moderation in which this broad perception consists, while the Utilitarian are interested in finding an unambiguous action rule. 14

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we do not maintain effective relationships. Sympathy, therefore, has not only integrating effects, but also disruptive effects, which Hume emphasizes and explores in his analysis of partisan disputes: “Such is the nature of human mind, that it always lays hold on every mind that approaches it; and as it is wonderfully fortified by an unanimity of sentiments, so is it shocked and disturbed by any contrariety. Hence the eagerness, which most people discover in a dispute; and hence their impatience of opposition, even in the most speculative and indifferent opinions. This principle, however frivolous it may appear, seems to have been the origin of all religious war and divisions”15.

Hume considers political party divisions natural and inevitable to some extent. It is an effect of the same process that integrates us into our groups of origin, with the possibility of taking furious and fatal dimensions when associated with religious zeal. Hume’s The History of England is full of episodes in which the factional and disruptive effects of sympathy are explored, with religious prejudice being one of the main causes of violence in political disputes. Sympathy brings us closer and separates us at the same time. In a word, it makes us partial: “We sympathize more with persons contiguous to us, than with persons remote to us; with our acquaintance, than with strangers; with our countrymen, than with foreigners”16. In this sense, sympathy is a kind of selfishness, although different from it in a fundamental point, as Deleuze observes: “selfishness would only have to be limited. The case is different with respect to sympathies: They have to be integrated, and integrated in a positive totality”17. This is sympathy’s inherent potential: the possibility of an increasingly extensive integration of perspectives, as a kind of antidote to its disruptive effects. In order for sympathy to play this role effectively, Hume shows that its irregularities and biases must be corrected: “Every particular man has a peculiar position with regard to others; and ’tis impossible we cou’d ever converse together on any reasonable terms, were each of us to consider characters and persons, only as they appear from his peculiar point of view. In order, therefore, to prevent those continual contradictions, and arrive at a more stable judgement of things, we fix on some steady and general points of view; and always, in our thoughts, place ourselves in them, whatever may be our present situation”18.

It is worth noticing that Hume speaks here of “steady and general points of view” in the plural, a very important detail to illustrate that for him “there is no single ‘moral point of view’, but rather various perspectives which must be taken into account in order to arrive at any moral judgment”19. Moreover, these points of view are suscep15

Hume (1985), pp. 60 – 61. Hume (1989), p. 581. 17 Deleuze (2001), p. 33. 18 Hume (1989), pp. 581 – 582. 19 Herdt (1997), p. 72.

16

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David Hume and “difference” as a cosmopolitan principle

tible to degrees: They may start as little more than a particular point of view shared by a small group, and then become more and more general as that group grows; it may find support in a few situations and be applicable to a few cases, and then become more and more comprehensive, as it encompasses more experiences. Also, Hume says that we resort to more general points of view as we recognize the peculiarity of our own, in order to avoid the contradiction between particulars points of view, recognized as such. That’s why we look for a more general and comprehensive point of view – one capable of encompassing contradictions. This more stabile point of view arises from sympathy itself, as we learn how to separate its principle from our peculiar sentiments about people. It is sympathy that effectively works in us and produces more general and comprehensive perspectives, insofar as it sensitizes us, to a greater or lesser degree, to what happens to others, pursuant to particular circumstances in which it operates. Once these circumstances are removed, sympathy remains no longer as a natural and mechanical condition that produces a common point of view effectively operating in us, but as a principle, a criterion or a rule that gives rise to a moral judgment, i. e., to generals and comprehensives judgments of value. So, if Hume underlines sympathy’s thoughtless and almost contagious aspect in the passage in which the phenomenon is presented for the first time in the Treatise, (“men of the greatest judgement and understanding (…) find it very difficult to fallow their own reason or inclination, in opposition to that of their friends and daily companions”), in those texts in which it is presented as the principle of morals, sympathy emerges as a normative element – it exposes a rule of moral judgments, whose characteristic is taking the effects of actions on others into account: “’Tis from the influence of characters and qualities upon those who have an intercourse with any person, that we blame or praise him. We consider not whether the persons, affected by the qualities, be our acquaintance or strangers, countrymen or foreigners”20. Based on this rule, a certain partiality of the judgments can be corrected, and perspectives may be broadened. This process can be taken to the point of including the perspective and codes of conduct of other peoples, as Hume does in A Dialogue, which concludes An Enquiry Concerning the Principles of Morals. In this dialogue, a character named Palamedes describes to the narrator the strange customs of a country called Fourli that he would have known on a trip and that, at a certain point in the dialogue, turns out to be the Ancient Greece. Palamedes stresses the differences and describes the customs of the Greeks in such a way as to emphasize that the same people whose customs are exalted for their civility “have ways of thinking, in many things, particularly in morals, diametrically opposite to ours”21. Palamedes intends to depict “the uncertainty of all

20 21

Hume (1989), p. 582. Hume (1975), p. 324.

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those judgements concerning characters; and convince [the narrator], that fashion, vogue, custom, and law, were the chief foundation of all moral determinations”22. This is not, however, the dialogue’s conclusion. The narrator is not convinced by these arguments and makes an effort to show that Palamedes exaggerates the differences and disregards the similarities between customs, also disregarding that, while the former are accidental, the latter are due to certain original and uniform principles of praise and blame. In an essential point, the ideas of merit do not vary: They are determined on the basis of the useful or pleasant effects they produce on those who are affected by the action or disposition to action in question. As we have seen, this is the general rule for moral codes formation. Referring morality to a common principle does not imply disregarding customs and moral languages diversity. On the contrary, knowing this principle is what allows us to understand the morals of the Greeks as different from modern morals, as the narrator does when refers each of the strange customs described by Palamedes to the circumstances in which they appeared as useful or pleasant to the sensitivity of those who praised them. Therefore, there is no universal moral system, and that is perfectly understood when one notes that the moral language formation basis consists of concrete sympathetic situations. What is universal is not the moral language itself, but its formative rule, i. e., sympathy. The reference to this general rule is what allows us to understand a moral language and to justify values that are different from ours. Sympathy thus operates as a principle of perspectives integration as long as gradually corrected by a reflexive process through which it ceases to be a simple mechanical and unthought principle of communication of affect to operates as a normative principle of affect correction. Hume considers, however, that there are limits to this process. One of them is in the controversies concerning property rights. To whom does the iron cup belong: the one who gave it the shape, or the one who owns the material? To whom does the abandoned city belong, among the Greek colonies that sent messengers to seize it? The one whose messenger, upon realizing that his rival was approaching the city gates, sends an arrow that touches them before the opponent’s hand, or to the messenger that touches the gates with his hand first? Hume evokes these classic quarrels regarding property rights23 in order to show that they do not have an unambiguous solution. From the public utility’s point of view, the important thing is that a decision is made, and which one is frequently indifferent. In these cases, it is a matter of deciding between different interests, and not seeking a broader point of view that embraces them. This is the space to be occupied by authority or political power in shaping property rules. Another limit to the points of view’s integration processes is in the different interests behind political authority disputes. Hume understands that this question nec22 23

Hume (1975), p. 333. Cf. Hume (1989), III.II.iii, pp. 506 – 507, note.

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essarily appears when constitutions do not define precisely the way authority is shared, as in the case of the Constitution of England: “It is impossible but different opinions must arise concerning it, even among persons of the best understanding”24. These controversies, which in England leaded to civil war, are resolved through what Hume calls the “coalition of parties”25, consisting of an agreement around certain minimum constitutional arrangements, such as those of the English parliamentary monarchy, which accommodates divergences and appeases the spirits. These processes are about reaching a broad perspective in some way – the philosopher’s perspective, which does not take sides and tries to reconstruct the reasons of one side and the other, in order “to encourage moderate opinions”26. However, Hume is aware that the philosopher’s perspective is not the perspective of political agents whose interests and principles clash. In disputes over authority, it is not possible to overcome the opposition of interests except through the mediation of political institutions whose nature is precisely in dispute; hence the complexity of political life that Hume as the historian of England was able to capture and narrate like nobody else. The process of broadening moral perspectives and the coalition around institutional arrangements that mediate political disputes go hand in hand. The more the political agreements and conventions allow for coexistence between different individuals, social groups or peoples, the more those arrangements promote coexistence between differences, the more opportunities they offer for points of view to be adjusted and broadened. At the center of the process is the ability of men to reflect on this same process and correct its disruptive effects, which, however, remain on the horizon, as a possibility that is not always preventable. The path to integration, however, is signaled by the process’ internal rule: the broadening of perspectives. *** Once introduced sympathy and its important effects, it is worth pointing out an element in the above reproduced Treatise’s excerpt that is very representative of the way in which Hume thinks about integration processes. Adam Smith criticized this element, and a defense in the face of such friendly fire is worth to be done27. Unlike Smithean, the Humean way of thinking about these processes allows us to think about the normative domain they produces as an always-open domain, with the potential to integrate what is left out it. In this sense, Humean way of thinking seems to be more promising to deal with the question about the extension of the cosmopolitan domain. 24

Hume (1987), p. 64. Hume (1987), XIV. 26 Hume (1987), p. 494. 27 On the philosophical friendship between Hume and Smith, cf. Rasmussen (2017).

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As observed, Hume presents sympathy as a “propensity we have to sympathize with others, and to receive by communication their inclinations and sentiments”. And he adds: “however different from, or even contrary to our own”. The observation is important because it shows that feeling out of sympathy is not feeling the same as the others, but feeling from the others, even when theirs sentiments differ from ours or oppose them. A little further, Hume says that it is the expression of passion in the other that triggers the process, and he immediately emphasizes its otherness when he says: “When any affection is infus’d by sympathy, it is at first known only by its effects, and by those external signs in the countenance and conversation, which convey an idea of it”. It is, therefore, the idea of passion – what is supposed to be the other’s passion, based on the way the other manifests and signifies it, and how the observer interprets these signs – that triggers the affects communication process. Hume thinks of sympathy according to a theatrical model. We are affected by the observation of a scene in which we witness sentiments and passions of which we have an idea after the actors’ expression. He explains that this idea – which initially refers to an external reality, to what is happening or what we suppose to be happening with the actor – becomes a feeling in us and gains our interior when we relate it to the system of ideas that we call “Self”, and that reinforces and explains the partial character of sympathy, since the feeling received through communication is the more alive the more relationships it has with one’s own experience. From the point of view of broadening perspectives and partiality corrective processes whose logic I am interested in emphasizing, the fundamental is that we are able to feel from what the other suggests to be the theirs sentiments trough their signs and external manifestations. That, according to Hume, is what allows us to take distance from our own perspective, and broaden it. Hume uses the theater scenario to explain how men come to value actions and dispositions of character from a common point of view and, therefore, to form moral judgments: “A man who enters the theater, is immediately struck with the view of so great a multitude, participating of one common amusement; and experiences, from their very aspect, a superior sensibility or disposition of being affected with every sentiment, which he shares with his fellow-creatures”28.

In addition to pointing to the moral function of theater, the image illustrates the way sympathy operates as a moral principle. The philosopher clarifies that the moral point of view is one in which someone forms a judgment considering what he and other observers of a given scene, in which certain actions and dispositions are staged, observe as their effects on those involved. The scene takes place on the stage, from which the spectators and moral judges are separated, comfortably seated in their seats. This distance is what allows them to judge from a shared point of view, that of who is not on the scene. This is the point of view of those who make moral judgments, whose criterion is not their own feeling, but that of others or that of men in general. 28

Hume (1975), p. 221.

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When elaborating his own theory of sympathy in a dialogue with Hume, Adam Smith disputes this theatrical model and his friend’s emphasis on the vision of passion as a starting point for the communication of affection. According to Smith, “sympathy does not arise so much from the view of the passion [and it is evident that here he thinks about Hume], as from that of the situation which excites it”29. That is why we can feel for others a passion that he is unable to feel, as when we feel ashamed because of somebody else’s shameful behavior. This is because we transport ourselves to the situation in which the other is, and we imagine ourselves subjected to the same circumstances. “We sympathize even with the dead”, Smith emphasizes. In a more refined, detailed, and richer psychology than Hume’s, he explains that the fear of death is the fear of being in those circumstances that are no longer able to influence the dead, but that affect us, given the ability to imagine ourselves in his place: “It is miserable, we think, to be deprived of the light of the sun; to be shut out from life and conversation; to be laid in the cold grave, a price to corruption and the reptiles of the earth; to be no more thought of in this word, but to be obliterated, in a little time, from the affections, and most from the memory, of their dearest friends and relations”30. In this case, to sympathize is not a matter of feeling what the other feels (since the other definitely does not feel), but feeling what we ourselves would feel when we imagine ourselves in the other’s place. At this point, Hume’s theory of sympathy is the opposite of Smith’s. Nineteen years before the publication of Smith’s Theory of Moral Sentiments, Hume clarifies in the Treatise what is behind the postulate that it is the vision or the idea of passion in the other that triggers sympathy: It allows us to think that we are able to sympathize with sentiments of others “however different from, or even contrary to our own.” This point is dear to Hume. He would return to it in two moments of Enquiry Concerning the Principles of Morals, in which he considers what he describes as a possible objection to his system, namely, that sympathy transports us to the place of the other. Hume refuses this explanatory model of sympathy, for he understands that this model opens the way for reducing the sentiments that sympathy generates to the self-love perspective (as Thomas Reid would later accuse Adam Smith of doing31). And against this reduction, he says: “it is not conceivable, how a real sentiment or passion can ever arise from a known imaginary interest; especially when our real interest is still kept in view, and is often acknowledged to be entirely distinct from the imaginary, and even sometimes opposite to it”32.

The observation is reiterated in yet another moment of the Enquiry33, and it is important for showing that sympathy must be understood not exactly as an ability to feel 29

Smith (1982), p. 12. Smith (1982), p. 12. 31 Cf. Broadie (2006), p. 163. 32 Hume (1975), p. 217. 33 Cf. Hume (1975), p. 300. “How an imaginary interest known and avowed for such, can be the origin of any passion or emotion, seems difficult to explain”. 30

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what the other feels, but more precisely to feel from what the other feels, with the differences between myself and the other preserved. This difference the idea of an “imaginary interest” rescued by Smith does not embrace. Such divergence as to the structure of sympathy accompanies important differences in the way of thinking about moral judgments that sympathy produces. Smith, much like Hume, believes that a reflexive effort is required in order for sympathy to operate as a moral principle. Taking one’s own sentiments as a measure of judgment, as Smith explicitly recommends34, is only valid for one who, in an inverse movement, learned to measure his own sentiments by the spectator’s eyes, thus moderating himself and controlling his excesses35. Moral judgment thus depends on a double effort: the effort of the people involved with the scene in adjusting their passions to the eyes of a spectator, and the effort of the spectator in putting themselves in the place of the people involved. What is sought through that double effort is that mediocrity of sentiments (their right measure) from which agents and spectators, in theirs different positions, would coincide in their sentiments. For Hume, however, the need for coinciding or even adjusting one’s sentiments to that of the other is not an issue. Not only can the other person remain the other and feel differently in similar situations, but his passion can make us to develop sentiments of oddity, can be opaque, misunderstood or misinterpreted, and still cause impact and become reference for moral judgment. For Hume, the moral judgment qualities – which makes moral judgment to be more than the expression of a mere personal preference – are comprehensiveness and generality, qualities that are better achieved the further away the observer is from the setting in which the actions unfold. Moral judgments measures utility, the effects of action as seen on others. For Smith, in turn, the moral judgment quality is impartiality, which is achieved when the spectator compares his own sentiments with the sentiments of those involved in the scene to be evaluated, as a matter of seeking fair measure. Its object is the convenience or property of affects and motivations, which, as the Stoic motto says, worth by itself, regardless of its effects. Behind these differences, there is the fundamental divergence that matters here. While for Smith the effort required for moral judgments to be formed and refined moves towards overcoming the differences between points of view in search of an impartial and appropriate look, Hume, on the contrary, stipulates that the judgment regulation process moves towards acknowledging each point of view, including one’s own, as different, circumstantial, and unique36. It is when the particular and circumstantial character of our own experience is acknowledged that a more general point of 34

Smith (1982), I, 1, 3. Smith (1982), I, 2. 36 For a comparative and convergent analysis between Smith and Hume, see Herdt (1997), ch. 4. According to the author, Smith understands that “sympathy is to be achieved by eliminating or concealing differences as much as possible”, whereas for Hume the capacity for sympathy develops “across differences” (p. 153). 35

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view is achieved, in which the particularities of the experience of others are incorporated. What is achieved is not impartiality, much less universality, but acknowledgment and awareness of one’s own partiality. This is what living with the different should provide, as in the case of the traveler in the Dialogue that closes the Enquiry Concerning the Principles of Morals. There, Hume advocates that understanding the Greeks and their values is not to feel like a Greek, but as a non-Greek who understands the particular circumstances that explain Greek’s system of values, thus learning not to universalize one’s own perspective to the point of excluding the other’s. This is what the narrator teaches the traveler to do, by showing that the traveler cannot use his own moral language as a criterion for evaluating the customs described, and that he has to understand the customs’ inherent circumstances, which, in turn, requires an understanding of the circumstances behind his own point of view. Likewise, for Hume, the good art critic is the one who does not disregard that a work is aimed at a specific audience, having been designed to please a certain group of people; the one who, accordingly, is able to recognize its own “individual being” and “peculiar circumstances”37, i. e., the circumstances that particularize his own point of view when he judges and appreciates a work of art. This is what brings refinement and delicacy to taste – this distrust, the moderately skeptical stance towards one’s own point of view, when we are willing to consider, instead of excluding beforehand, a contradictory perspective. The stance involves facing the prejudice, which Hume considers the main factor that perverts judgment and taste: “In all questions, submitted to the understanding, prejudice is destructive of sound judgement, and perverts all operations of the intellectual faculties; it is no less contrary to the taste”38. Hume addresses and defines the phenomenon in Volume I of the Treatise (I, 3, 13) when dealing with causal judgments. There, prejudice is presented as a factor of hesitation of judgment and weakening of belief, due to a contradiction between a hurried generalization taken as a rule to judge cases that however contradict it, and a well-founded causal reasoning about the cases. For example, when it is said that “an Irishman cannot have wit, and a Frenchman cannot have solidity”, a prejudice is incurred (which Hume suggests to be typically English), that is, a hasty generalization is made, which one is not willing to correct “tho’ the conversation of the former in any instance be visibly very agreeable, and of the latter very judicious”39. Overcoming prejudice involves facing the contradiction, opening up to the process of correcting the judgments by incorporating the cases that contradict it. The same applies to moral judgments and taste, which also need to overcome prejudice in order to correct themselves. Those judgments become more regular and stable (which motivates us to correct them) when we learn to consider the different circumstances in which they are formed from a more comprehensive perspective 37

Hume (1985), p. 239. Hume (1985), p. 240. 39 Hume (1989), p. 146.

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that encompass them. That is precisely the moralist’s perspective, the one who investigated the judgment and knows its rule, i. e. that moral values are formed when one appreciates the effects of the action on the people involved in the setting in which the action takes place. There one finds a look (or a rule for judgment) that allows one to recognize the other’s point of view as worthy of consideration, instead of unimportant. Hume understands that this depends on constant exercise and vigilance, since prejudice perverts judgment from the same causes that form it, namely, the tendency to generalize from cases. The difference lies in the stance of not clinging too much to generalizations, in considering contradictory cases in order to incorporate them – which implies a look that is always attentive to the particular and the circumstances, to what escapes the rule, a look that a philosopher-historian, as Hume considers himself to be, should sought to cultivate. Such a way of thinking about the process of integrating perspectives has the merit of escaping the sometimes-provincial tone with which Smith talks about the European values system as if it were common to all cultures. It is not that Hume does not incur hasty generalizations as well. However, he teaches us to be suspicious of them where they lead us to treat the divergent case as abnormal, pathological or simply unassimilable, instead of considering it as a point of inflection and correction of our own perspective. More than that, Hume takes the always-open character of the perspectives and opinions to be considered when one forms a judgment as the rule according to which it is refined and adjusted. That is why the Humean way of thinking seems promising when it comes to defining the extent of the cosmopolitan domain: Who is inside, and who is outside this domain? Who is part of our moral and legal community, and who is not? Hume helps to answer the question precisely because he does not decide it beforehand, by means of some fixed and definitive criterion. Everything depends on the system of opinions articulating what emerges at first as a contradiction between points of view and perspectives. This is not to say that all perspectives have to be accepted and integrated, that nothing remains outside the normative system thus constructed. Hume considers, for example, that monkish virtues, as they preach virtues like “celibacy, fasting, penance, mortification, self-denial, humility, silence, solitude”, which “serve to no manner of purpose; neither advance a man’s fortune in the world, nor render him a more valuable member of society; neither qualify him for the entertainment of company, nor increase his power of self-enjoyment”40, cannot be explained by the same rules that explain the formation of moral languages in general. Hume explains the appreciation of monastic virtues as a result of religious prejudice, transferring the moralists who value them the burden of showing the capacity that their own moral language has to integrate and adapt to other ways of life and appraisal systems. So, everything (Cosmopolitanism) depends on the always-renewed capacity and the reflexive effort to integrate points of view, taking their differences into account. 40

Hume (1975), p. 270.

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References Agamben, Giorgio: Estado de exceção, São Paulo 2004. Broadie, Alexander: Sympathie and the Impartial Spectator, in: Knud Haakonsen (org.), The Cambridge companion to Adam Smith, Cambridge 2006. Colliot-Thélène, Catherine: La democracie sans « demos », Paris 2011. Deleuze, Gilles: Empirismo e Subjetividade, São Paulo 2001. Herdt, Jennifer: Religion and Faction in Hume’s moral philosophy, Cambridge 1997. Hume, David: A Treatise on Human Nature, Oxford 1989. Hume, David: Tratado da Natureza Humana, São Paulo 2000. Hume, David: Enquiry concernig the principles of morals, Oxford 1975. Hume, David: Investigação sobre os princípios da moral, in: Investigações sobre o entendimento e sobre os princípios da moral, 2003. Hume, David: Essays Moral, Political and Literary, Indianapolis 1985. Hume, David: Ensaios políticos, São Paulo 2003(b). Pimenta, Pedro Paulo: A trama da natureza, São Paulo 2018. Rasmussen, Dennis: The infidel and the professor, Princeton 2017. Smith, Adam: The theory of Moral Sentiments, Indianapolis 1982 Smith, Adam: Lectures on jurisprudence, Indianapolis 1982(b). Kant, Immanuel: Ideia de uma história universal de um ponto de vista cosmopolita, São Paulo 2003. Kant, Immanuel: A paz perpétua, in: A paz perpétua e outros opúsculos, Lisboa 2008. Kant, Immanuel: Métaphysique des moeurs, première partie, doctrine du droit, Paris 2011.

There are no limits to the rights of a state against an unjust enemy By Delamar José Volpato Dutra and Cláudio Ladeira de Oliveira

I. Habermas: Kant two hundred years later After two hundred years of the publication of Kant’s ZeF, Habermas published the text Kant’s Idea of Perpetual Peace: At Two Hundred Years’ Historical Remove. In it, Habermas seriously brings the Schmittian argument against Kant, so much so that he dedicates the final two parts of his text in an attempt to answer Schmitt. Habermas remembers the Schmittian verdict that the discourse of human rights in international relations is a hypocrisy, an ideological instrument in the hands of the world powers. Cosmopolitanism based on human rights has led to a pan-interventionism, which in turn led to a pan-criminalization of wars, which ultimately perverted the goal of peace that such a discourse was intended to serve1. In his text on Kant, Habermas admits that there is coherence between the theory of peace proposed by Kant and the reality of his time: “But the peace in question is as limited as the war from which it arises”2. The wars, at the time, were made with the technological devices then available, which gave it more defined contours. In such context, public international law, based on the sovereignty of States, had sufficient pedigree to maintain peace. For this reason, public international law was able to stop before the concept of jus in bello, giving up concern for jus ad bellum, in such a way that “War crimes are crimes committed in war”3. As will be seen, according to Schmitt’s diagnosis, the circumscription of war over the territorial space of European states allowed precisely the jus ad bellum to be given up in the sense of the justa causa for war4. However, for Habermas, in the meantime wars have become unlimited, in large part due to the technological apparatus that become available, in such a way that in the 20th century wars of aggression ended

1

Habermas (1998 [1996]), p. 188. Habermas (1998 [1996]), p. 167. 3 Habermas (1998 [1996]), p. 167. 4 Three elements make up the most traditional theory of just war: the just cause for war, the right intention and the competent authority. 2

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up becoming a crime5. So, now, there are not only crimes in war, but also crimes of war, depending on its cause.

II. Kant and the Federation of States In IaG, the text of 1784, Kant seems to defend a unified world power: “to go beyond a lawless condition of savages and enter into a federation of nations [Völkerbund], where every state, even the smallest, could expect its security and rights not from its own might, or its own juridical judgment, but only from this great federation of nations [Völkerbund] (Foedus Amphictyonum)) from a united might [Macht] and from the decision in accordance with laws of its united will”6.

In his own words such a situation will be “a universal cosmopolitan condition [ein allgemeiner weltbürgerlicher Zustand], as the womb in which all original predispositions of the human species will be developed”7. In the same direction, TP, 1793, points out to an international right [Völkerrrecht] and to a general state of people [allgemeinen Völkerstaat]8. However, in ZeF, 1795, Kant seems to change his position, since he affirms: “This would constitute a federation of peoples, which would not, however, necessarily be a state of peoples”9. There are several reasons that could be raised for his refusal of a state of people. The first is that Kant detects a contradiction between seeking a relationship between people and defending a world state, which seems to imply a fusion of multiple people into one person10. The second reason is that Kant does not accept the analogy of human beings leaving the state of nature, either because the states already had an internal legal constitution, or because what may be correct in theory, according to reason, does not correspond to the conception of public international law that human beings eventually practice11. The third reason concerns the possible consequences that can come from a world state, such as a universal monarchy, since the government, due to the simple fact of its worldwide extension would lose its vigor, which could lead to a soulless despotism, because it would eliminate the seeds of good, having anarchy as its outcome12. 5

Habermas (1998 [1996]), p. 167. Kant, IaG, AA 08: 24. 7 Kant, IaG, AA 08: 28. 8 Kant, TP, AA 08: 312 – 313. 9 “Dies wäre ein Völkerbund, der aber gleichwohl kein Völkerstaat sein müßte” (Kant, ZeF, AA 08: 354). 10 Kant, ZeF, AA 08: 354. 11 Kant, ZeF, AA 08: 357. 12 “ [S]o ist doch selbst dieser, nach der Vernunftidee, besser als die Zusammenschmelzung derselben, durch eine die andere überwachsende, und in eine Universalmonarchie übergehende Macht; weil die Gesetze mit dem vergrößtenUmfange der Regierung immer mehr an 6

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Kant’s design of the cosmopolitan order or the ius cosmpoliticum stopped at a conception of a federation of states, even though before the text of ZeF, 1795, Kant had tergiversated with something more muscular, a unified power of people. He had distinguished a federation of nations (Völkerbund) from a state of all people (Völkerstaat)13. For Habermas, in the end, the Kantian bonds between the federated states are moral bonds, not legal bonds, and they can, at most, count on the favorable contribution of the philosophy of history that, due to the ills of war, would eventually lead human beings to peace. Certainly, reason orders the end of wars as a means for states to resolve their disputes and, therefore, orders the search for peace: “Nonetheless, from the throne of the highest moral legislative authority, reason looks down on and condemns war as a means of pursuing one’s rights, and makes peace an immediate duty.”14 Nevertheless, reason cannot say what is the precise means for achieving peace. In theory, it seems necessary to form a world state, but this is not absolutely clear in the context of Kant’s work, so that there are advantages and disadvantages to be calculated. At the end, Kant himself has opted for a weaker route, that of a federation of states, apparently, because it is more in line with the current practice of public international law. It is still in ZeF, p. 346, that the unjust enemy thesis is indirectly rejected, thesis that he gives evidence of returning to it two years later in RL, 1797, § 60, by the way, a paragraph that seems out of step with the previous ones the RL, such as § 57, illustrative precisely of a jus in bello stripped of the unjust enemy thesis. Kant says in this last paragraph: “No war of independent states against each other can be a punitive war (bellum punitivum). For punishment occurs only in the relation of a superior (imperantis) to those subject to him (subditum), and states do not stand in that relation to each other. – Nor, again, can any war be either a war of extermination (bellum internecinum) or of subjugation (bellum subiugatorium), which would be the moral annihilation of a state (the people of which would either become merged in one mass with that of the conqueror or reduced to servitude)”.

Kant seems to note in this § 57 that in the right of a state everything would be allowed15. However, in contrast to this, in the same paragraph he says that “the right of nations involves only the concept of an antagonism in accordance with principles of outer freedom”. Formulations of this style, as well as others similar in ZeF, p. 346, can be considered practical implications of the refusal of the unjust enemy thesis.

ihrem Nachdruck einbüßen, und ein seelenloser Despotism, nachdem er die Keime des Guten ausgerottet hat, zuletzt doch in Anarchie verfällt.” (Kant, ZeF, AA 08: 367) 13 Kant, ZeF, AA 08: 357; Habermas (1997), p. 196. 14 Kant, ZeF, AA 08: 356. 15 In such a situation there is no injustice, since each State is a judge on its own (Kant, ZeF, AA 08: 355).

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III. The Schmittian thesis of just war and the tensions between the jurist Kant and the philosopher Kant According to Schmitt, Kant’s retreat from the defense of a world power, in conjunction with his rejection of the unjust enemy thesis, have brought him to line with modernity. As Schmitt argues, modern public international law came from the disintegration of the medieval Christian space order. Such an order had distinguished wars between Christians and wars against non-Christians. In the first case, they were bracketed wars [Fürsten umhegte Kriege]16, which could be just or unjust. In the second case, against non-Christians, wars were eo ipso always just wars and even holy wars. In the first case, wars were bracketed wars because they did not challenge the unity of the Christian republic, since they were disputes within the same normative context, the Christians, which also allowed to give some precision to the notions of justice and injustice for wars. Anyway, there was a long process of forming a spatial order in which land ownership became fundamental, passing through the migration – not invasion – of the people of northern Europe and the justification of the appropriation of the lands of the Americas. The justification of the fundamentality of the appropriation of land to the systems of positive laws is referred by Schmitt to Kant. Indeed, according to Kant, “Since the land is the ultimate condition that alone makes it possible to have external things as one’s own, and the first right that can be acquired is to possession and use of such things, all such rights must be derived from the sovereign as lord of the land, or better, as the supreme proprietor of it (dominus territorii)”17.

In conjunction with the acceptance of the appropriation of land, war became a legalized means of changing this spatial situation of the soil. In consequence, there was a rationalization, humanization and legalization, that is, a limitation of wars, in the sense that wars have shrunk to a military relationship between states18. By the end of the medieval period, the notion of a just cause for war had been remarkably restrained19. Then, international relations became based on the notion of justus hostis. In such a scenario, all the wars between states came to be considered legitimate. Moral and theological arguments were separated from legal-political ones, as in the same way, the argument of justa causa have divorced from the argument of justus hostis. More importantly, the justus hostis was distinguished from the criminal20. The enemy is no longer considered bad or criminal. The enemy is only and always a just enemy. 16

Schmitt (1974 [1950]), p. 28. Kant, RL, AA 06: 323. 18 Schmitt (2006 [1950]), p. 100. 19 Schmitt (2006 [1950]), p. 120. 20 Schmitt (2006 [1950]), p. 121. 17

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Theoretically, Bodin can be considered the founder of the concept of non-discriminatory war between states21. Around the end of the XVIth century, according to Schmitt, the distinction between just war [bellum justum] and just cause for war [justa causa belli] was already well established. For him, bellum justum is a war that takes place between justi hostes. Just, in this case, means impeccable [einwandfrei], perfect in the sense of formal justice [Formgerechten], as well as when it is said a justum matrimonium22. Based on these distinctions, a non-discriminatory concept of war was developed, grounded on the parity of the contenders, being both sides of the struggle recognized as just enemies. Enemies are always just, unlike thieves, pirates and rebels, who don’t match the picture of enemies, but of criminals23. The XXth century distinction between criminal enemies and non-criminal enemies is a counterpoint against the modern development of the theory of war that resurrects the medieval doctrine of just war, but without its complement by the Christian doctrine of war24. In this new scenario of modernity, first, the war ceases to be morally considered and starts to be considered legally, which means that substantive justice is removed from just cause for war, remaining only the formal characteristic of sovereignty as summa potestas. Second, the concept of just war is formalized in the concept of just enemy, which is redirected to the concept of justus hostis, namely, being any sovereign state regardless of whether the cause for war is just or unjust under a substantive point of view. The consequence was a non-discriminatory parity between sovereign states, since all of them, for just being sovereign states, can consider eo ipso as a justus hostis. Third, substantive justice or injustice is determined by each sovereign state. Finally, all of this is tempered by relativism and agnosticism in relation to justice25. Indeed, for Schmitt, the just cause for war theory has been replaced in modernity by a non-discriminatory concept of war and not only because the emergence of sovereign states. However, and more fundamentally, his point is that the just cause for war has always been difficult to apply, difficulty which he detects already in St. Augustine and St. Thomas. The difficulties in the application of the concept of just cause for war led, during the Renaissance, to a certain skepticism and agnosticism regarding the determination of which cause would be just or unjust. With the consolidation of sovereign states, they began to decide on the justice or the injustice of wars. In this way, wars became legally determined, being legality taken as synonymous of formality and procedure, not substance26. Finally, such changes also allowed neutrality in the war, because with the de-substantialization of the justice involved in the cause for wars, it became possible to consider the two states involved as being 21

Schmitt (2006 [1950]), p. 152. Schmitt (1974 [1950]), p. 124. 23 Schmitt (2006 [1950]), p. 153. 24 Schmitt (2006 [1950]), p. 321. 25 Schmitt (2006 [1950]), p. 154. 26 Schmitt (2006 [1950]), p. 157. 22

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just and, as a result, to maintain neutrality27. The principle of legal equality between states made it very difficult to distinguish between those states that would aim at a just war and those that would aim at an unjust war, because of the implication of making one sovereign the judge of the other28, which is incompatible within the concept of sovereignty. With all states being equally sovereigns, neutrality became possible, but on the other hand, it became possible to take sides in wars without injustice. This ended up leading to common wars moved by common interests29. Westphalia, 1648, is therefore iconic of such an evolution of the war in Europe. In other words, these formulations ended up consolidating a firm structure of bonds between the sovereigns as members of a balanced space system that benefited everyone30. At the end of the XVIIth century Vattel will offer the exact formulation of this evolution: “La 1ère Règle de ce Droit, dans la matière dont nous traitons, est que la Guerre en forme, quant à ses effets, doit être regardée comme juste de part & d’autre. […] 2ème Règle: Le Droit étant réputé égal entre deux Ennemis, tout ce qui est permis à l’un, en vertu de l’état de Guerre, est aussi permis à l’autre”31. With the dismissal of the doctrine of the just cause for war, all wars become formally just. According to Schmitt, first, killing and, therefore, war, is not morally justified or unjustified, it is an existential act; second, there is no way to support both points, the just cause for war and jus in bello, as the commentator attests: “Schmitt’s main contention is that, by acknowledging that the waging of war was not a crime but a legitimate state activity, jus publicum europaeum was able to regulate war by means of jus in bello. […] There is a causal relationship (of the typical post hoc ergo propter hoc variety) between these two phenomena, that is, it was because the notion of justa causa of war had been abandoned by jus publicum europaeum that proper attention could be paid to combatants’ conduct during war and hence jus in bello developed”32.

Schmitt interprets the Treaty of Versailles as symptomatic of the crisis of European public international law precisely because of the renewal of the theory of just cause for war. In the same direction is the Schmittian interpretation of Marxism: “In addition to the above justification for war, in 1932 Schmitt identified the ideas of Marx, as well as Lenin’s ‘annihilating sentences against bourgeois and western capitalism’, as being ideologies of just war […] Schmitt also stresses the roles of Leninism and Maoism in the revival of the notion of just war after the Second World War and in fomenting civil and revolutionary wars throughout the globe”33.

27

Schmitt (2006 [1950]), p. 165. Schmitt (2006 [1950]), p. 167. 29 Schmitt (2006 [1950]), p. 168. 30 Schmitt (2006 [1950]), p. 166. 31 Vattel (1758), §§ 190 – 191. 32 Slomp (2006), p. 440. 33 Slomp (2006), p. 443. 28

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It is at this point in his argument that the discussion with Kant comes into play. Schmitt’s thesis is that Kant is double-faced. On the one hand, he is a real son of modernity, who is in accord with a legal determination of war under the scope of stare sovereignty, on the other hand, the medieval unjust enemy thesis reappears in his text34. The title of the present study is exactly Kant’s statement about the unjust enemy at the beginning of § 60 of the RL: “There are no limits to the rights of a state against an unjust enemy.” For Schmitt, Kant does not stop on the justus hostis thesis. He advances towards the hostis injustus, against which a war is always more than just war, being crusade, since the hostis injustus is more than a criminal, he is the perpetrator of the state of nature35. However, according to Schmitt, Kant sets limits on the actions that could be taken against states, for example, they could not be extinguished and their territory divided. What could be done is to force them to adopt a new constitution more favorable to peace, something that is in line with the justus hostis thesis. This hostis injustus thesis that seems to reappear in Kant’s words sounds strange, since an essential feature of the legal system is the consideration of actions, not of people, so that, in Schmitt’s analysis, the concept of an unjust enemy by Kant is indicative of Kant’s recovery of the previous doctrine of the just cause for war, whose focus is not the act [Tat], but the author of the act, its perpetrator [Täter] 36. An unjust enemy will eventually be seen as a criminal37. Schmitt’s thesis is that Kant does not offer a legal treatment of the hostis injustus thesis, because if he had advanced in the sense of its legal implications, he could not account for the limitations that he himself tried to impose on the possible consequences for war that such a concept would imply, vis-à-vis the discriminatory component of that concept, which is deeper than just war theory and just cause for war. Therefore, the limits thought by Kant are conceived by the Kant philosopher and ethicist Kant, not by the jurist Kant. Furthermore, according to Schmitt, the Kantian definition of the unjust enemy does not instantiate the modern concept of aggression or crime d’attaque, whose legal pedigree is unquestionable. As Kant gives no indications to following plainly in such a direction, his position remains closer to the theologian than to the jurist. In the end, Schmitt accuses Kant of destroying, in the name of a philosophical ethics, the work of the jurists who built the concept of justus hostis38. Schmitt sees in Kant the one who put on the scene the concept of hostis injustus, whose legal consequences were in fact avoided by the philosopher and ethicist Kant. Nevertheless, the 20th century39 came to show precisely the full legal development of such a concept: if the enemy is unjust, then he is a criminal. This kind of rationale finally made it possible to move towards the criminalization of wars. For Schmitt, the 34

Schmitt (2006 [1950]), pp. 168 – 169. Schmitt (2006 [1950]), p. 169. 36 Schmitt (1974 [1950]), p. 142. 37 Schmitt (2006 [1950]), p. 171. 38 Schmitt (2006 [1950]), p. 171. 39 Schmitt (2006 [1950]), p. 168. 35

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Kantian unjust enemy thesis has paved the way, in the 20th century, for the discriminatory wars against the enemies of humanity.

IV. Kant as a critic of just war theory In Kant’s two most important works on war, there are edges to be trimmed. RL seems to argue based on the concept of a state of nature between states. Therefore, it leverages a defense of the right to war. Based on this kind of argument an author like Scruton tried to defend the war against Iraq with Kantian perspective40. On the other side, ZeF seems to stress an argument based on public international law that should be reformulated in the sense of an international social contract in a confederation of states aiming at peace41. Under this latter bias, Kant seems to have detected an incompatibility, not only between the theory of just cause for war, but also between the theory of just war and current international law, the main purpose of which would be to resolve disputes peacefully. Under this latter bias, any kind of justification for war, even if it was that of the state of nature, would always imply considering its possibility as an alternative for countries to resolve their conflicts42, even because there would be no way to impartially judge the issue in dispute43. It is not for other reason that the modern authors of the disjunction between the theory of just cause for war and the theory of just war, Grotius, Pufendorf, Vattel, are presented in ZeF as tiresome comforters [lauter leidige Tröster]: “For otherwise of states who wish to feud with one another would never utter the word right, except to use it in jest, as a Gallic prince once declared: ‘It is the prerogative that nature has given the stronger that the weaker ought to obey him.’ Although states can pursue their rights only through war, and never by means of a trial before an external tribunal, war and its favorable conclusion —victory—never determines right”44.

The model of these authors are very similar to that of Hobbes based on the rights in a state of nature, an argument that Kant seems really parade in RL. In contrast to Schmitt, Williams argues that Kant does not defend the concept of unjust enemy. In fact, for the commentator, Kant has made an ironic use of such a concept: “Schmitt seems not to have grasped the irony that is part and parcel of Kant’s treatment of the ‘unjust enemy’. It is not at all clear that Kant brings up the concept as a prelude to identifying such possible unjust enemies; indeed, I think it is more likely that Kant deploys the concept with the view to showing its difficulties and inapplicability to international politics as it is 40

William (2012), p. 116. William (2012), pp. 100, 110. 42 William (2012), p. 116. 43 William (2012), p. 117. 44 Kant, ZeF, AA 08: 355.

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constituted in its Westphalian, sovereign state form. Kant is interrogating the concept of justis hostis as he finds it in the international law of his day and juxtaposes it with the ‘unjust enemy’ with a view to bringing out the paradoxes and limitations of that law”45.

The commentator tries to draw a consequence different from that of Schmitt. As seen, for Schmitt, the preponderance of state sovereign power implied the abandonment of the just cause for war and its replacement by formal legal processes, according to witch, all wars became formally just. With this step of modern rationalization, the specter of just cause for war was left behind, and enmity became a proper political concept, in clear counterpoint to morals and theology. Such desideratum implied the weakening of enmity, since the enemy was no longer characterized in moral terms as bad or criminal. Not for Williams. It is precisely the politically absolute sovereignty of the States that is unable to stop declarations of unjust enemies and its fight until the annihilation: “It is only because states are largely in a condition of nature in relation to one another (and so in a continuous condition of potential hostility) that the odd idea of an unjust enemy can possibly gain purchase. […]. The possibility of an unjust enemy arises where one or more state(s) or their leaders refuse to recognize the normal minimal restraints on the declaration of war. The unjust enemy is prepared to go beyond the usual latitude permitted to states in the use of force”46.

Williams explains that “Kant’s doubts about the applicability of the concept of an ‘unjust enemy’ lie at the heart of his objection to just war theory. Here the continuity between Perpetual Peace and the Doctrine of Right could not be more evident”47. Williams concludes that “Both Carl Schmitt and Kant then are critical of just war theory as it derives from medieval international law (Aquinas) and is evidenced in modern international law, but they are critics from opposed perspectives”48. For Schmitt, the war and the possibility of wars are natural between sovereign states. Kant, otherwise, has fought this supposedly bellicose nature of international relations. For Kant, to think such a bellicose relation between states is natural, as if it were inevitable, not only goes beyond the limits of reason, but is against the moral end ordered by pure practical reason that commands the search for peace. As a matter of fact, the commentator deserves amendment. Schmitt is more of a critic of justa causa for war than a critic of just war, whereas Kant, at least the Kant of ZeF, seems to have been a very radical critic of the very notion of just war: “Kant rules out just war notions because no state leader is in a position to judge what ultimately is right”49. According to Schmitt, any war is just, at least formally, whereas for Kant, wars are not exactly unjust, since what happens in a state of nature cannot be declared unjust, but he says that wars are forbidden by the throne of reason that con45

William (2012), p. 104. William (2012), p. 104. 47 William (2012), p. 105. 48 William (2012), pp. 105 – 106. 49 William (2012), p. 117. 46

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demns it as a legitimate way to vindicate the rights of the states. This kind of utterance resides at the very heart of the Kantian proposal for a federation of states: “This federation aims not at the state’s acquisition of some sort of power, but rather at its securing and maintaining the freedom of a state for itself and also the freedom of other confederated states without these states thereby being required, as are human beings in the state of nature, to subject themselves to public laws and coercion under such laws”50.

The aim of such a federation, apostrophes Kant, is not to make war, but “secure the condition of peace among states in accordance with the idea of international right and gradually extend this union further and further through several such associations”51. It also follows that neither preventive interventions in other states can be carried out, differently of Scruton’s thoughts52, nor humanitarian interventions, as Habermas defended. As Williams points out, Kant only authorizes interventions in other states in cases of civil war, when there was no longer a sovereign, and this under the proviso of establishing a sovereign53. Simply to intervene would be a case of paternalism, defends the commentator54. It is necessary to be patient and wait for the people themselves to create a situation of civil war, and only after this to intervene. Indeed, Kant appreciated very much the French Revolution, but he never defended to intervene in it55. In this sense, to an author like Habermas the patience of history is lacking56. Against Schmitt’s interpretation of Kant as a cosmopolitan universalist, an objection can be raised that Kant really was even an exaggerated defender of state sovereignties. Certainly, the Schmittian definition of the political is anti-universalistic, since the political is based on the concept of enmity, which implies one party against the other, and, in addition, the nomos of the earth, its law, is always connected to a particular piece of soil, which is the spatial basis of any legal system, being this territorial spatiality of any legal system another non-cosmopolitan element57. Nevertheless, Kant, the runner of the universality of human rights, at the end, did not defend a world state, but a federation of states58. At this point, he seems to respect state sovereignty as an insurmountable element of international relations. In fact, Kant, rather than replacing the Hobbessian model of international law, aimed to reformulate such a model in order to achieve peace, also at the international level59. But on the question

50

Kant, ZeF, AA 08: 356. Kant, ZeF, AA 08: 356. 52 William (2012), p. 134. 53 William (2012), pp. 133, 135, 168. 54 William (2012), p. 118. 55 William (2012), p. 121. 56 William (2012), p. 135. 57 Monod (2013), p. 150. 58 Monod (2013), p. 153. 59 William (2012), p. 119.

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of the non-intervention in the internal affairs of other states, Kant seems completely in agreement with Hobbes60. In short, Kant’s cosmopolitanism is temperate, weak. (a) It is weak as far as frontiers between States are concerned, since Kant does not abdicate from the Hobbesian formulation of public international law that conceives States in a state of nature, and (b) it is weak also in relation to the cosmopolitan rights he grants to men. Concerning this last point, according to p. 358 of ZeF, Kant’s foundations for the cosmopolitan rights of men are “the right of common possession of the surface of the earth”, and the negative that someone “has more right to be in one place on earth than in another”. But from these foundations he infers only the cosmopolitan right to visit other countries. However, such fundamentals seem to challenge more than Kant’s admitted in the boundaries between countries established by public international law, not to mention that the Kantian conception of human rights [öffentlichen Menschenrechte] could have advanced towards a greater positivity than that restricted to be the complement of an unwritten code61. That the just cause for war and just war itself be de-potentiated from a strong normativity and fall into the limbo of a dominium where justice does not apply, perhaps, is shown by the following aspect of Kantian philosophy: when dealing with the declaration of war, it is one of the few moments in which Kant quibbles with a direct democracy62. After all, Kant seems to mean that the declaration of war should be asked to all citizens63. More than that, Kant frankly admits citizens’ interested motives for fear of the consequences of the war. With this move, he shifts the accent from the first terms of the traditional doctrine of just war to the third term, that is, from the just cause for war to the authority to make a war64. Only in this way could legitimacy be added to war, but never justice65. From the analysis of the state of nature between states, Schmitt draws the consequence that every war is protected by the mantle of justice, regardless of the justice of the cause for the war, whereas Kant draws the consequence that wars are not just or unjust, since the discourse of justice applied to war is only a tiresome comforter.

V. Habermas: are human rights moral rights? There are at least two alternatives for defending Kant against the Schmittian accusation concerning the unjust enemy’s thesis. One is that which rejects Schmitt’s 60

William (2012), p. 120. Kant, ZeF, AA 08: 360. 62 William (2012), p. 109. 63 William (2012), p. 108. 64 William (2012), p. 108. 65 William (2012), p. 100.

61

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thesis, as defended by Williams. Williams’ interpretation makes Kant’s critique of the just war doctrine progress into public international law understood in a contractual sense. Unlike Schmitt, for whom the strengthening of such sovereignties is both the guarantee against the thesis of the unjust enemy, and the formal realization of just war, for Kant, the appeal to the notion of justice, even if it is the improper notion of justice in a state of nature, is precisely the situation that opens space for considering all wars as just wars that states have a right to do, as defended by the authors that Kant call tiresome comforters. This kind of rationale opens space for the constant resurgence of the unjust enemy. In this regard, Kant’s response was precisely to bet on public international law, and reorient it in direction of a federation of states. The other alternative is one proposed by Habermas and Benhabib who accompany Schmitt’s diagnosis. Indeed, Benhabib seems to accept that the confuse Kantian concept of unjust enemy somehow anticipate Schmitt’s diagnosis concerning today’s liberal international policy, which has moved towards the introduction into international relations of the concepts of war crimes, crimes against humanity, and the resulting reintroduction of the notion of discriminatory wars, that is, just and unjust wars. Behabib’s conclusion could be palatable if one thinks that Kant, in the end, has maintained really strong determinations in relation to the unjust enemy, since, under the terms of the RL, a war could be waged against the unjust enemy to force him “to adopt a new constitution that by its nature will be unfavorable to the inclination of war”66. As the commentator well points out: “Schmitt is not wrong then in seeing in Kant’s text the beginnings of a vision of a liberal world order within which the range of regimes that would be considered legitimate is narrowed to those that would respect the laws of nations, defined through the principles of perpetual peace”67. Habermas, for his part, accepts a streak of truth in Schmitt’s diagnosis of cosmopolitanism based on human rights, one he himself wants to defend, and, because of that he rehearses an answer. According to Habermas, Kant’s cosmopolitan project needs to be reformed in the direction of defending a cosmopolitan democracy with stronger legal ties and based on human rights. Now, it is precisely this point that Schmitt challenges, as according to him human rights go against legal relations between States, because they imply a moralization of international relations that regurgitate the figure of unjust war, that contributes not to peace, but to make wars worse. Habermas’s point against Kant seems to point out to an insufficient legalization of international relations by him. So, he tries to reformulates Kant’s cosmopolitanism in a double direction, normatively, deepening the links with human rights and, politically, in direction to a stronger legalization, in fact refused by Kant. Considering such a project, it’s understandable why Habermas needs to answer Schmitt’s reservations against it. According to Schmitt the two aspects not only are incongruous because human rights and legality do not combine, but they surely make wars worse. 66 67

Kant, RL, AA 06: 349. Benhabib (2012), p. 698.

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Habermas finds himself in the contingency of responding to this objection because, as said, he admits a core of truth in Schmitt’s argument, which, of course, affects his own cosmopolitan project based on human rights. In fact, a moralization without the mediation of law and politics would lead to the rupture of protected areas that needs to be legally guaranteed for subjects with rights. Nevertheless, it’s a mistake to argue that the moralization of international politics could only be avoided by keeping it free from a conception of right disconnected from morality68, because such a position fundamentally obliterates the question of legitimacy, which Habermas understands in connection with democracy and in harmony with moral principles. Now, it is precisely in the move that Schmitt does, from categorizing the enemy as bad or unjust to the enemy as a criminal that he, for Habermas, precisely obliterates legal mediations, since, when moving from the moral to the criminal portrait, Schmitt would have to move forward in the direction to the legal mediations that the legal treatment of a crime imprint, such as having an impartial judicial authority, the due process of law, etc.69 More importantly, the central point of Habermas’s argument is to show that human rights are not moral rights in nature, in such a way that their implementation would not lead to a moral fundamentalism70. Human rights cannot be confused with moral rights71. Rights are zones of freedom, not the imposition of duties: “This conceptual privileging of rights over duties follows from the structure of modern coercive law first elaborated by Hobbes”72. It is fundamentally because the differentiation made by Habermas between human rights and moral rights that their implementation in international relations will not imply a moralization of such relations.

VI. Conclusion To conclude: Schmitt and Habermas, even though they define what is legal in Kantian lines, – since Schmitt refers to the element of determinability and consideration of actions, instead of the character of the agent, and Habermas refers to the Kantian distinction between right and morality in terms of the externality of legal relations, that is, in terms of certain aspects of conduct that are not available to legality such as convictions and motives,73 – Habermas seems to have highlighted a second aspect that he judges crucially important, namely, law calls for procedures, which allows him to conclude: “Human rights fundamentalism is avoided not by renouncing the politics of human rights, but only through a cosmopolitan transformation of 68

Habermas (1998 [1996]), p. 233. Habermas (1998 [1996]), p. 233. 70 Habermas (1998 [1996]), p. 191. 71 Habermas (1998 [1996]), p. 201. 72 Habermas (1998 [1996]), p. 191. 73 Habermas (1998 [1996]), p. 201. 69

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There are no limits to the rights of a state against an unjust enemy

the state of nature among states into a legal order”74. Evidently, how to think of a nonbased-state international legal order is a problematic point for Habermas’s position, even more for a Neo-Kantian like Habermas. Though this is not in itself meaningless, as shown in the last chapter of Hart’s book about international law75. Considering the Hobbesian thesis according to which sovereign states are in a state of nature, (a) Schmitt apostrophizes that, then, all wars are just, since they are based on the right of each sovereign state to use whatever means it wants to achieve its objectives, while (b) Kant does not see how to apply the concepts of justice or injustice to what happens in such a situation. For him, wars are not just or unjust. Wars are means not permitted by the very spirit of public international law for resolution of conflicts, even though public international law does not have the capacity of giving coercive effectiveness to such determinations. In this way, Habermas’s proposal to conceive a public international law without a world state is in line with the Kantian proposal for peace. References Benhabib, Seyla: Carl Schmitt’s Critique of Kant: Sovereignty and International Law, in: Political Theory, 40, 6, 2012, pp. 688 – 713. Habermas, Jürgen: The Inclusion of the Other: Studies in Political Theory, Cambridge 1998 [1996]. Habermas, Jürgen: Die Einbeziehung des Anderen: Studien zur politischen Theorie, Frankfurt am Maim 1997. Hart, Herbert Lionel: The Concept of Law, Oxford 1994 [1961]. Kant, Immanuel: Anthropology, History, and Education, Cambridge 2007. Kant, Immanuel: Toward Perpetual Peace and Other Writings on Politics, Peace, and History, New Haven and London 2006. Kant, Immanuel: Practical philosophy, Cambridge 1996. Kant, Immanuel: Kant’s gesammelte Schiriften/Kant’s Werke, (28 vs.), (Preussischen Akademie der Wissenschaten), Berlin 1911. Monod, Jean-Claude: Toward Perpetual War?: The Stakes and Limits of Schmitt’s Critique of Kant’s Cosmopolitanism, in: The New Centennial Review, 13, 1, 2013, pp. 137 – 160. Schmitt, Carl: Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum, Berlin 1974 [1950]. Schmitt, Carl: The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, New York 2006 [1950]. Slomp, Gabriella: Carl Schmitt’s Five Arguments against the Idea of Just War, in: Cambridge Review of International Affairs, 19, 3, 2006, pp. 435 – 47. 74 75

Habermas (1998 [1996]), p. 201. Hart (1994 [1961]).

Delamar José Volpato Dutra and Cláudio Ladeira de Oliveira

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Vattel, Emer de: Le droit des gens ou principes de la loi naturelle, appliqués à la conduite & aux affaires des nations & des souverains, Londres 1758 [https://oll.libertyfund.org/title/vattel-ledroit-des-gens-ou-principes-de-la-loi-naturelle-2-vols]. William, Howard: Kant and the End of War: A Critique of Just War Theory, New York 2012.

Kant and the birth of the pragmatic By Fernando M. F. Silva

I. Anthropology beyond anthropology – a new investigational path Among the questions that can be posed regarding a better ascertainment and comprehension of Kant’s anthropological project of the 1770s – judging by the different perspectives of Kantian scholars – these tend to be twofold: on the one hand, attention is devoted to the historical character of Kant’s anthropology, its consensus or dissension regarding other authors (and their own anthropologies) and subsequent place in and contribution to the history of modern, or scientific (or philosophical) Anthropology1; on the other hand, study is ascribed to the suitable, or conflictual, compatibility between Kant’s anthropological and, for instance, critical lines of thought; that is, to the way how Kant’s anthropology and philosophy might somehow shed new light upon one another; more often than not, anthropology being in the process seen as a solid, yet not fundamental departure point towards the comprehension of Kant’s philosophical endeavor2. As is visible, each of these different approaches has its own undeniable advantages and furthermore is true regarding the study of Anthropology as a science. Certainly, no one will deny that Kant establishes a – at times even vocalized – dialogue with several interlocutors in anthropological matters, or even regarding the nature of Anthropology. Indeed, especially in his Lectures on Anthropology (1772 – 1796), Kant not only dissociates his anthropological project, pragmatic in nature, from E. Plat-

1

On this line of investigation, see, among others, Brandt, R. (2007), Die Bestimmung des Menschen bei Kant, Hamburg: Felix Meiner; IRIS, I. (2009), Philosophical Anthropology and Contemporary German Thought, April, Firenze UP.; Zammito, John H. (2002), Kant, Herder, and the Birth of Anthropology, Chicago and London: University of Chicago Press. 2 On this line of investigation, see Jacobs, B. & Kain, P. (eds.) (2003), Essays on Kant’s Anthropology, Cambridge: Cambridge UP; Brandt, R. (1999), Kritischer Kommentar zu Kants Anthropologie in pragmatischer Hinsicht (1798), Hamburg: Felix Meiner; Calian, Nicole (2011), Die Erfindung des Menschen. Kants Vorlesungen über die Pragmatische Anthropologie, 1772 – 1795, Proquest, United States: Uni Dissertation Publishing; Cohen, Alix (ed.) (2014), Kant’s Lectures on Anthropology. A Critical Guide, Cambridge: Cambridge University Press.

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ner’s physiological anthropology, Anthropologie für Ärtzte und Weltweise3, and furthermore from A. Baumgarten’s Metaphysics4 (or, what is the same, Empirical Psychology), but, throughout these lectures, several of the main topics of his own published texts, such as “Von den verschiedenen Racen der Menschen”5, or 6are discussed in more detail – and in open contrast – with the opinions of early – subsequent – anthropologists such as G. Forster7, C. Meiners8 or J. F. Blumenbach9. From this, one usually concludes, Kant holds a unique place in the history of Anthropology, inasmuch as he is the founder of its modern, pragmatic concept10. Furthermore, no one will deny that Kant’s anthropological thought – because it is early in Kant’s academic career, because it deals with topics which are philosophical by nature and because it addresses the human being in general – does hold a say in Kant’s posterior critical edifice. A say that, contrary to what some may state, is more than a casual one, inasmuch as Kant’s anthropology is conceived as a part of a propaedeutic for all knowledges, a part of a doctrine of the world that is at the beginning and end of all philosophical knowledge, just as the latter is conceived, as in a circle, as the necessary intermediate, fusing member between that very beginning and end. Kant’s use of Anthropology, its importance in Kant’s work, seems to be an immediate proof of this. From this, we can conclude, Kant’s anthropology not only plays a role, but plays a very important role, in the development of Kant’s critical thinking. And, as such, both perspectives of Kant’s anthropological endeavor are necessary and relevant to the greater topic at hand, and hence deserve the attention credited to them. However – such is our opinion – the fact that Kant’s anthropological thought is subjected to either one or the other of these approaches does not mean that these approaches are complete amongst themselves, nor that they do not allow for a third, parallel, yet no less fundamental approach. In fact, it is our view that a third perspective of the problem, complementary of as well as complemented by the latter, is here required. The perspective in question is that of the reciprocal relations between Anthropology and other knowledges, and, subsequently, the ascertainment of the posi3

Platner, E., Anthropologie für Aertzte und Weltweise, Leipzig, Dyckischen Buchhandlung, 1772. 4 Baumgarten, A. G., Metaphysica, Halae Magdeburgicae, C. H. Hemmerde, 1739. 5 Kant, I., “Von den verschiedenen Racen der Menschen”, 1775 (AA 2: 427 – 443). 6 Kant, I., “Bestimmung des Begriffs einer Menschenrasse”, 1785 (AA 8: 89 – 105). 7 Forster, G., A Voyage Round the World, London: B. White et al., 1777; or Forster, G., “Noch etwas über die Menschenrassen”, in: Forster, G., Werke in vier Bänden, Bd. 2, Leipzig, 1971. 8 Meiners, C., Über die Natur der Afrikanischen Neger und die davon abhangende Befreyung, oder Einschränkung der Schwarzen (1790), ed. Frank Schäfer, Wehrhahn, 1997; or Meiners, C., Grundriss der Geschichte der Menschheit, Lemgo: Meyerschen Buchhandlung, 1785. 9 Blumenbach, J. F., Handbuch der Naturgeschichte, Göttingen: Johann Christian Dieterich, 1779 – 1780. 10 On the pioneering nature of Pragmatic Anthropology both as a science and as an academic subject, see Kant’s own words, AA 25: 7; AA 25: 472; AA 25: 859.

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tion of Anthropology within the complete field of human knowledges: a prism devoted, first of all, to retracing the internal history of Kant’s anthropology, the cartography of its origins, its first collocations and initial dealings with other sciences and its establishment as a science of the human being; and then, whenever possible, to ascertaining such traits regarding other akin or distant sciences, so as to show how the reciprocal contribution (and position) between Anthropology and different fields would lead to the mutual establishment of all of these as human knowledges, first in Kant’s spirit, then in Kant’s theory and in the modern episteme. In a word, a prism which tends towards a better discernment of what Anthropology means, how its position in the whole can influence the latter and how it might rule over Kant’s thought, as one of its most fundamental vectors. The option for this via excentrica in the analysis of Kant’s anthropology, though seemingly unfeasible (due to apparent scarce textual proof) and therefore too bold (inasmuch as it proposes to seek the unspoken origins of Kant’s anthropological thought) is nonetheless, in our view, both possible and necessary. To do so, we shall have to seek for our object, Kant’s anthropological thought, prior to our object, which seems to come to be only in 1772; to do this, in turn, we shall have to seek for our object outside of our object, in fields now akin, now unrelated to it, where the designation Anthropology might arise; and, finally, to do this we shall even have to seek for our object under a different name than that of our object, depending on the field under consideration. For, we hope to prove, Kant’s anthropology (from a pragmatic point of view) is a construction earlier to the Lectures, and hence much earlier than the Anthropology of 1798, rather arises in the cosmological-geographical texts of the 1750s and, most specifically, in the early Lectures on Metaphysics (1755 onwards); furthermore, it is our view that Anthropology (re)appears not only within anthropological writings, but, rather interdisciplinarily, in Kant’s Psychology, in Kant’s Logic, in his Pedagogy and even in some published writings of other theoretical natures, proof that the origins and true scope of Kant’s anthropology are to be found not only in the LA, but especially elsewhere, throughout his work; and, last but not least, it is our opinion that Kant’s Anthropology at times went by designations other than its own – something which ultimately we also aim to analyze and prove, and indeed stands as a confirmation of the importance of Anthropology in Kant’s work. Should we be so fortunate as to prove this, and we hope that this singular approach to Kant’s anthropology might ultimately show Kant’s anthropology as a unique trait of his position regarding the importance of this matter at his time, as well as, in addition, a fundamental vector of his whole theory; simple desideria by which we hope to show that we do not mean to exclude said approaches to Kant’s anthropology, rather mean to validate and enrich them by presenting Anthropology, as does Kant, in its reciprocal influence with Geography, Metaphysics, Psychology, Cosmology, Aesthetics, Logic, Pedagogy, Politics, Law or Moral, and displaying this as a trait of the true importance of Kant’s contribution for the ascension of Anthropology as a science.

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II. Anthropology and Empirical Psychology. An association towards their dissociation 1. A brief history of the ‘pragmatic’ in Kant. The birth of the ‘I as World’ Among the different forms that Kant’s collocation of anthropology assumes in different fields of analysis, perhaps the most important, for the most enlightening as to the epistemological position of Anthropology, is that of its relation with Empirical Psychology. The question, more and more brought to light by Kantian readers11, could be formulated thus: what is the nature of the relation between Empirical Psychology and Pragmatic Anthropology? That is: is there a relation between the two, which could render Empirical Psychology an Anthropology, and vice-versa? Or is there no relation between the two, to the extent that Pragmatic Anthropology is no Empirical Psychology? Such questions, to be sure, are not at all devoid of a natural pertinence; for, let it be noted as a departure point for the question, that: On the one hand, the histories of Empirical Psychology and Pragmatic Anthropology appear to be quite interchangeable, if not, at times, one and the same; a fact which seems to be corroborated by several others, namely, the late inexistence of Anthropology as a science, which led to its prompt identification with Psychology12 ; the 11 The question on the inexistent, partial or complete dissociation between Empirical Psychology and Pragmatic Anthropology, if based upon the study of their positions regarding one another and other sciences in the field of human knowledges – as is here the case – has hitherto received little attention by Kantian scholars. However, if based on the study of their convergent and/or divergent properties and scope, the question has summoned some attention recently; on this complementary dimension of the problem, see Pérez, D. O., “Los límites de la psicología como ciencia y la posibilidad de su uso en la antropología en Kant“, Studia Kantiana, 15(2), 2017, pp. 51 – 61; Sturm, T., “Kant on Empirical Psychology: How Not to Investigate the Human Mind”, en: Watkins, E. (ed.), Kant and the Sciences, Oxford: Oxford University Press, 2001, pp. 163 – 184; Blanc-Brude, G., “L’Anthropologie du point de vue pragmatique est-elle une psychologie ?”, en: Grapotte, S., Lequan, M. y Ruffing, M. (eds.), Kant et les sciences, Paris: Vrin, 2011, 321 – 329; Frierson, P. R., Kant’s Empirical Psychology, Cambridge: Cambridge University Press, 2014; Hatfield, G., “Empirical, Rational, and Transcendental Psychology: Psychology as a Science and as Philosophy”, en: Guyer, P. (ed.), The Cambridge Companion to Kant, Cambridge: Cambridge University Press, 1992, pp. 200 – 227; McNulty, M. B., “Kant on Empirical Psychology and Experimentation”, en: Waibel, V. L., Ruffing, M. y Wagner, D. (eds.), Natur und Freiheit: Akten des XII. Internationalen KantKongresses, Berlin: De Gruyter, t. 4, 2018, pp. 2707 – 2714. 12 The inexistence of Anthropology as a science may be best seen through its lexicographic proof. As such, if one seeks the term “Anthropology”, or its respective foreign word, throughout dictionaries in the 17th and 18th centuries, one finds that there is no occurrence of the word: of this are examples Henisch (1616), Bullokar (1641), Blount (1656), Schottel (1663), Stieler (1691) or Steinbach (1734). Indeed, it is not until John Kersey’s Dictionarium Anglo-Britannicum, or a General English Dictionary (1708), that the term “Anthropology” is finally considered, under the following words: “Anthropology, a discourse or description of

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early indistinction of Anthropology as a science, which further reinforced this tendency13; and several intrinsic characteristics of anthropological thought, which seemed to present Anthropology, just as Empirical Psychology, as mere observatory, empirical studies of the human soul14. On the other hand, so dictated the German academic syllabus until the 18th century, Empirical Psychology was a part of Metaphysics; and hence, so was the rising Anthropology, here again taken as Empirical Psychology, to be understood as part of Metaphysics, not as a science nor as an academic discipline in its right15. Finally, let it be noted that not only the external histories, or the external epistemological conditions designated that Empirical Psychology and Pragmatic Anthropology were associated, rather Kant himself did this, and this precisely by presenting Empirical Psychology and Anthropology as synonyms throughout most of his work; prior to the onset of his Lectures on Anthropology (1772), in the Lectures on Logic and the lectures on Metaphysics, and even at a later stage, in the lecture on Encyclopedism and again in his Lectures on Metaphysics16. Here, it is Kant’s opinion that “A psychology of observations could be deemed an anthropology”17; and, as such, it must be Kant’s opinion that between Empirical Psychology and Pragmatic Anthropology there is not the least difference. Bearing in mind these important assumptions, one might be inclined to conclude that there is a relation between Empirical Psychology and Anthropology, and not just any relation, rather a coexistence, insofar as one seems to be the other. Now, were we to endeavor in a mutual history of the concept of Anthropology – or the pragmatic –, as well as the concept of Empirical Psychology, in Kant, let it be noted that prior to the 1770s, during the 1760s, there is positively no reference to Anthropology, or the pragmatic, in any dimension of Kant’s work. As an example of this, Man, or of a Man’s body” (unpag.). And in Germany, this does not take place until even later, namely, in Johann Christoph Adelung’s Versuch eines vollständigen grammatisch-kritischen Wörterbuches der Hochdeutschen Mundart (1774 – 1786): “The Anthropology: from the Greek Anthropologia: The doctrine of men, their parts and relations both in a theological and in a physical and moral regard” (…). 13 Such ambiguity is rendered patent by the very titles of anthropology, or anthropologylike manuals of the time, wherein Anthropology is still very much intertwined with Medicine, Psychology or Physiology, among others: namely, Otto Casmann’s Psychologia Anthropologica (1594); Riolan’s Anthropographia et Osteologia (1618); Meisner’s Anthropologia Sacra (1619); Kyper’s Anthropologia Corporis Humanum (1647); Sperling’s Synopsys Anthropologiae Physicae (1659); Hartmann’s Anthropologiae Physico-MedicoAnatomicae (1696); Teichmeyer’s Elementa Anthropologiae Sive Theoria Corporis Humani (1719); or even Platner’s Anthropologie für Ärtzte und Weltweisen (1772), which was of great influence for Kant. 14 “A psychology of observations could be deemed an anthropology“ (AA 28.1: 367). 15 See annotations 46 and 56 of this article. 16 See AA 28.1: 367; AA 29.1: 757; AA 29.1: 11. 17 AA 28.1: 367.

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in the text “Announcement for the Disposition of his Lectures” (1765/66)18, which served as an overview of Kant’s academic and reflexive concerns, the philosopher not only makes no mention of the aforementioned fundamental division, but, quite consistently, does not mention Anthropology; that is, Anthropology as such is not yet considered by Kant, neither as a science nor as an academic discipline. This, of course, could be easily ascribed to the fact that Kant’s lectures on Anthropology, at the University of Königsberg, only began in 1772. And, should this happen, all relation between the emergence of Anthropology and the emergence of the fundamental division of all knowledges would be lost, and Anthropology would indeed be a synonym of Empirical Psychology. However, this is not the case. For, in the same brief text, Kant not only does not mention Anthropology, and not only does not establish the division between system and aggregate, but, upon mentioning “Metaphysics”, Kant includes here Empirical Psychology, by saying: “Hence, I shall start with a brief introduction on Empirical Psychology, which is truly the metaphysical science of the experience of men”19. This, of course, means two important things: one, that, by 1765, Kant still believed that Empirical Psychology was a part of Metaphysics (which he did not in the 1770s), and hence that there was no need for an anthropological science. Secondly, as a result, this means that until 1765, there was still no Anthropology in Kant’s spirit (if so, then only under the form of an Empirical Psychology, and hence under the aegis of Metaphysics), as was not, at least in writing, the expression of a fundamental division of human knowledges, that is, no textual mention of an opposition between system and aggregate. And this because, as we believe, the two facts are intimately intertwined, and one cannot occur in the absence of the other, to the extent that, as will be shown, from the end of the first – the union between Empirical Psychology and Anthropology – depended on the existence of the latter – the difference between the two, as brought about by a reconfiguration of the table of human knowledges. Kant, we further believe, not only believed in the consonance between Empirical Psychology and Anthropology during the remainder of the 1760’s, but he did so even during part of the 1770s – and not, as one might think, only up until the crucial year of 1772, the first year of Kant’s Lectures on Anthropology, where, all of a sudden, as if by magical arts, Kant would come up with a conception of Anthropology different from that of his prior Empirical Psychology. Instead, we believe that Kant would nourish this notion even after this decisive moment in time and hence during some of his early Lectures on Anthropology. Our opinion, which may at first seem too bold, is based on the actual texts of the Lectures on Anthropology. For, if one should peruse the introductory parts of all the different lectures on anthropology – their Prolegomena or Prooemia – one no doubt conclude that by 1772 Kant does indeed begin to distinguish Anthropology from Empirical Psychology – otherwise, he would not have deemed his course “Anthropology”, nor would he have stated that until then 18 19

AA 2: 303 – 313. AA 2: 309.

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there had been no Anthropology, nor would he have presented Anthropology was a rising science, therein lectured for the first time, etc. To be sure, the Lectures on Anthropology, begun in 1772, no doubt mark the first steps of Kant’s anthropological thought, and the definitive impetus towards his cosmopolitical project. However, let it be noted, this is not done explicitly, nor without a shadow of a doubt, on Kant’s part. For, both in Anthropologie-Collins (1772/73) and in AnthropologieParow (1772/73), there is yet not a single mention of the word “pragmatic”; and the whole inaugural presentation of the science of Man seems to be done only in strict connection with Empirical Psychology – something which Kant seems to be forced to do, and something which only corroborates the necessary approximation between Empirical Psychology and Anthropology, as further portrayed outside of the Lectures on Anthropology. For, and this is our point, by 1772/73 Kant does dissociate Empirical Psychology, and hence Anthropology, from Metaphysics, thus drifting away from his position in 1765; but, upon so doing, never does Kant state that not only are both sciences not Metaphysics, but they themselves are not one and the same. The best example of this is to be found in the lecture Anthropologie-Parow, where Kant not only does not mention a Pragmatic Anthropology, but does not even once mention the word “Anthropology”, rather begins his lecture on Anthropology by dealing expressly and only with Empirical Psychology, and, in absolute omission of Anthropology, by stating that “It [Empirical Psychology] also deserves a course, partly because it does not at all belong to Metaphysics, partly because it can be learnt by all, without requiring previous sciences”20. To which he adds: “Here [in Empirical Psychology] one can learn the sources of all human actions and the characters of men in their connection”21: indeed, all terms, designations and traits, which Kant would soon ascribe only to Pragmatic Anthropology, not at all to Empirical Psychology. This means, then, that until at least 1773, and even in the presence of an initial concept of Anthropology, Kant seems to be still struggling with the ascertainment of the truly unique, individualizing nature and position of his Anthropology – the ascertainment of that which would set it apart from other Anthropologies, namely, its pragmatism – and, as such, one may beforehand conclude that the dissociation of Empirical Psychology and Anthropology from Metaphysics, as seen from 1772 onwards, is indeed a great, but also only a preparatory step towards the later dissociation and specific formation of Anthropology within the field of human knowledges, and within Kant’s spirit. The second step, as is visible, could only consist of a definitive, cabal separation between Anthropology and Empirical Psychology, which would ensue. It is the depiction of such a crucial moment that we shall now endeavor. Precisely when, or how such a groundbreaking turn occurred in Kant’s spirit, we cannot know; for never does Kant address it other than by mere signs or hints. And yet, one thing seems to be certain: the first Kantian use of the term “pragmatic”, and, not by chance, the first mention of all the key-concepts which would mold Kant’s 20 21

AA 25: 245. AA 25: 245.

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definitive concept of a Pragmatic Anthropology, as seen throughout the remainder of the Anthropology lectures, the Anthropology from a Pragmatic Point of View and other akin cosmopolitically-themed writings – such as the concepts of prudence, plurality, universal disposition, popular character –, all are to be found in Kant’s lecture Anthropologie-Friedländer, dated 1775/76. Herein, according to Kant, now in a much more distinct tone, Anthropology is the propaedeutic of all human knowledges, both rational and empirical. And hence, so Kant, human knowledge is to be seen in a division which would henceforth be fundamental, and would inaugurate all his Lectures on Anthropology, a division into two kinds of perfection: a theoretical, rational perfection, scholastic in nature, focused on the understanding, “which consists of our knowing what is demanded for certain final ends”22, where one deals with things; and a pragmatic one, anthropological in nature, focused on the power of judgment, which consists in the capacity “to make use of all our ability”23, that is, which teaches us “how we should employ or ability”24, namely, when dealing not with things, but with people25. To no surprise, the later Kant, namely, in Anthropologie-Menschenkunde, deems this latter perfection a practical perfection26. In other words, it is Kant’s view that one kind of perfection, the theoretical one, makes us able in the World, insofar as in it we reflect upon Man in the World (Ich als Seele), as opposed to empirical sciences, where one reflects upon Man in the World. Here, in the theoretical perfection, are included all the rational or metaphysical sciences which one normally ascribes to the School, and which one normally tends to separate from (the empirical dimension of) the World. A second perfection, the pragmatic, or practical one, mediates the mere possession of an ability (the theoretical), devoid of use, and the due or prudent application of that ability in the world (the practical). That is, the pragmatic, due to its simultaneous study of Man and Nature, or better yet, its joint study of the more theoretical “Ich als Seele” and the more practical “Ich als Welt”, promotes an approximation of, or a healthy commerce between the rational and the empirical, towards a wise conduct of Man in the world. For, situated between the base concepts of things, and the lofty concept of human (moral) persons, the pragmatic, so Kant, teaches us how to prudently cognize and judge upon human beings amid all the things in the world; and this, through the harmonization between human reason (the theoretical) and the ends which Nature, or Providence, has in store for human beings, and which must be brought to completion (in the empirical); a talent of the human power of judgment to bring theory and practice, theoretical and empirical together, which results in the transition of those human beings from the passive condition of mere abstract concepts – the I, the You – towards their greater, more important position in the world, namely, that of the active, cosmopolitan considera22

AA 25: 469. AA 25: 469. 24 AA 25: 856. 25 AA 25: 856. 26 AA 25: 855. 23

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tion and nurturing of higher, moral purposes, and a clearer notion of communion (the We as the highest instance), be this through law, politics, religion or education. This unique perspective, so Kant, no longer renders human beings able, or prudent, rather wise27; and here, in this pragmatic-practical, this plural, this wiser prism of the world, are therefore to be included the two sciences which compose the doctrine of the world, Pragmatic Anthropology and Physical Geography28, in their obvious, indeed mutual, for mediating relation both with the rational and the empirical. And yet, we ask, given the aforementioned relation between Anthropology and Empirical Psychology, is this not the same with Empirical Psychology? Can Empirical Psychology not claim this same mediating, central function between the rational and the empirical, and is it not part of such a pragmatic, or practical, dimension of human knowledge, as is here Pragmatic Anthropology? Kant answers our question briefly, yet unequivocally, in the same lecture Anthropologie-Friedländer: no; Empirical Psychology cannot have the same mediating function as Pragmatic Anthropology. In fact, all of Anthropology’s traits, from its aggregational scope between theoretical and practical, its mediating function between the mere (objectual) ability of the rational and its (personal) prudent application in the empirical, its universalizing, pluralistic, in a word, cosmopolitan nature, are not to be ascribed, nor can be ascribed, to Empirical Psychology. For, so Kant, Anthropology, unlike Empirical Psychology, “is not a local [anthropology], rather a general Anthropology”29, and therefore it does not “cognize the situation of men, rather the nature of humanity”30 as a whole; and this because, unlike rational knowledge, or empirical knowledge, anthropological knowledge is of a cosmological – and therefore cosmo-political – nature. Furthermore, (Pragmatic) Anthropology, unlike Empirical Psychology, is “not a description of men, rather [a description] of the nature of men”31; and, as such, it is a study of “humanity, but not a psychological or a speculative, rather a pragmatical one, for all pragmatic doctrines are doctrines of prudence, where, for all our abilities, we have the appropriate means to make good use of them”32. However, the defining argument – that is, Kant’s main argument towards the scission of both sciences – appears as a sum of all the preceding, and could be summarily expressed with few words: in Empirical Psychology, one must have knowledge of the internal human sense, one could say, of a world within the World (Welt), the human soul (the “Ich als Seele”). In Pragmatic Anthropology, however – so stresses Kant not 27

AA 25: 855. “Physical Geography belongs to the knowledge of the world as its first part, insofar as it is pragmatic. (…) The second part of the knowledge of the world is the knowledge of Man, who is considered insofar as its knowledge is of interest to us in life” (AA 25: 470). 29 AA 25: 471. 30 AA 25: 471. 31 AA 25: 471. 32 AA 25: 471. 28

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only in Anthr.-Menschenkunde, but also in Anthr.-Starke33, “one must have world”. That is, one must have knowledge not only of the human soul, but also of its plural, multifaceted, prudent application in the world, where the I becomes “Ich als Welt”, and therefore assumes relations with other subjects as dwellers of the Earth, influencing, steering them, partaking with them in the singular experience of existing as human beings. For, so Kant, “the knowledge of all relations is the world”34. But, so Kant, “to possess a knowledge of the world one must study a whole, a whole from which one can later determine the parts”35, and not the other way around. That is, one must not depart from the subject (the parts), and from it subsume the world (the whole), as does, for instance, Empirical Psychology. Instead, one must beforehand be imbued with the notion that the I as soul is in itself I as World (a We in a common, intimately interconnected world), just as Anthropology, the study of Man, is in itself part of a doctrine of the world. If so, then the idea of the World, the totality from which one must depart, is in itself homogenized with that of person (one, so to say, has world), and the later determination of the parts – the conduct of Man on Earth, the prudent application of one’s ability upon the other, the purposeful relations between the parts of the whole – will appear spontaneously and in immediate confirmation of the whole, just as the whole appears as the immediate cause of the parts. Such consonance, such perfect accord between the whole and the parts, according to Kant, is to be deemed a “system” (System). In a word, Pragmatic Anthropology is a system, the system of the knowledge of Man in the World; for “he has a system, who can ascribe the multiple a place in the whole of cognitions”36, as does the science of Man. But anything different from this – that is, there where one departs from parts towards the whole, that is, where “a whole arises not through the idea, but through composition”37 of parts – this is not a system, rather an “aggregate” (Aggregat), as is, for instance, the case with Empirical Psychology. Such a separation between Anthropology and Empirical Psychology as that of a system and an aggregate, we believe, is (at least temporally) the first explicit Kantian mention of a dissociation between the two; a claim for the systematicity, or scientificity of Anthropology, as opposed to the absence thereof in Empirical Psychology, which is finally brought to word as a final argument toward their separation from Metaphysics, and their mutual separation, at the end of Anthropologie-Friedländer, as follows: “One thought that, in [such] a science, there would not be much to say, and this is why Anthropology was inscribed in Metaphysics, namely, in Psychology, which therein constitutes Empirical Psychology; to which, however, [Anthropology] does not belong, insofar as Metaphysics has nothing to do with empirical sciences”38. 33 Starke, F. C., Immanuel Kants Anweisung zur Menschen- und Weltkenntnis, Leipzig: Die Expedition des Europäischen Aufsehers, 1831. 34 AA 25: 469. 35 AA 25: 470. 36 AA 25: 470. 37 AA 25: 470. 38 AA 25: 473.

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2. The ‘pragmatic’ between system and aggregate Now, as crucial as this moment in 1775, and the division between system and aggregate, may be towards the dissociation of Empirical Psychology and Pragmatic Anthropology, and hence towards the singularization – and subsequent new status –, in Kant’s spirit, of the latter, all this may however appear as somewhat feeble, even inconsistent, in the eyes of the beholder of the problem. For an example is nothing without a proper context and akin proofs that may confirm it. The previous fact, we nonetheless state, is not at all isolate, nor should it be seen as a casual assertion by Kant. Instead, Kant’s dissociation of Empirical Psychology and Pragmatic Anthropology, as seen in the Lectures on Anthropology, is rather one among other proofs not only coincident in time – the year 1775 – but also in content, insofar as the latter, just as the previous example, focus on a new-found Kantian fundamental division of systematic and non-systematic knowledges: one that, not by chance, may definitively help us solve the question of the position of Pragmatic Anthropology, regarding other knowledges, within the field of human knowledges (or, what is here the same, in Kant’s spirit). It is well-known that Kant’s strict division between rational and empirical presides over Kant’s thought ever since its inception, as a heritage not only from past philosophers, but from the whole Western philosophical tradition. One cannot therefore identify when this fundamental dichotomy arose as manifest, only when it accentuated to a structuralizing extent in Kant’s spirit, namely, during the 1770s. During this long process of accentuation, which would engulf most of the so-called silent decade, and which not by chance coincides with a long and hard reflection on the systematic relations, positions and tasks of the different sciences within the field of human knowledge, a defining moment is to be identified somewhere in the first half of the 1770s (namely, between 1773 and 1775). Around these years, a certain degree of clarity is attained. Consequently, Kant’s terminology in this crucial matter changes, not because it is substituted altogether, but because it is perfected around a new presiding dichotomy which will thenceforth pervade Kant’s work in all its domains. This pair, as was said, is that of the opposition between system and aggregate – the fundamental division towards a reconfiguration of the table of human knowledges, as proposed around that time not only by Kant the philosopher, but also by Kant the anthropologist, the geographer, the encyclopedist the logician or the philosopher of history, not without repercussions for each of the sciences herein involved. As such, let it be noted that even though in Metaphysik-Herder (1764) this division is not to be noticed, however, in Metaphysik-Pölitz I – lectured in 1777/78, merely two years after its original ascension in Anthropologie-Friedländer – Kant opens his discourse by establishing a grounding difference between “system” and “aggregate”, forming around it a whole (bilinear) scheme of human knowledges. Namely, according to this table – to put it quite summarily – all human knowledges are either parts regarding a whole, a system, and hence rational, or they are parts regarding other

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parts, an aggregate, and hence empirical39. The first ones constitute the sciences of reason, or sciences of insight, which proceed vertically, ascending or descending in a line according to their distance from the empirical. The second ones constitute historical sciences, or sciences of erudition40, which proceed horizontally, advancing or regressing according to their distance from rationality. This fundamental division, let it be noted, is not exclusive of Metaphysik-Pölitz I, but thenceforth opens all of Kant’s Lectures on Metaphysics, each presenting the rational “ladder” of human knowledges in opposition to the “plain soil”41 of empirical data in ever more defined and perfected manner. In fact, it is not even exclusive of the Lectures on Metaphysics, rather it reappears, not by chance, in the only remaining Lecture on Encyclopedism (also dated 1775/76)42; in the much-contested Lectures on Geography, not only that of Rink, dated 1802 but presumably from 177443, but also that of Vollmer, presumably a collection of Kantian reflections between 1778 and 179344 ; and throughout Kant’s published work, as can be noted, for instance, in the text “History from a Pragmatic Point of View” (1784)45. Now, apart from what this tells us immediately – namely, that between 1774 and 1778 Kant crystallizes his thought on the problem of the reciprocal relations and positions between sciences around a key-dichotomy, and that this is visible throughout, as well as discernible in various dimensions of his thought – the previous confluence denounces something more, if seen up-close; something which brings to question, now decisively, both Empirical Psychology and Pragmatic Anthropology. As seen before, it was Kant’s opinion in the Lectures on Anthropology, especially from 1775 onwards, that Pragmatic Anthropology was precisely a “system”, whereas Empirical Psychology was an “aggregate”; an opinion based on Kant’s belief that Empirical Psychology dealt only with the human internal sense – the I as soul – whereas Pragmatic Anthropology dealt with the I as soul within a broader scope, that of the World (the I as world); hence its being, alongside Geography, two parts of one doctrine of the world. Because of this, so concluded Kant in the Lectures on Anthropology, Empirical Psychology had no relation with, nor was a part of Metaphysics – which is precisely systematic –; whereas Pragmatic Anthropology was in this aspect very different, which is why it had to be dissociated from Metaphysics, in the first place, and secondly, and most importantly, from Empirical Psy39

See AA 29.1: 5 – 8; AA 29.1: 747. AA 29.1: 5; AA 28.2: 531. 41 See AA 28.1: 171. 42 “Philosophische Enzyklopädie” (AA 29.1: 5 – 45). 43 “Geographie-Rink“, in: Rink, Friedrich Theodor, “Vorlesungen über Physische Geographie”, in: Immanuel Kant’s Physischer Geographie, Königsberg: Göbbels und Unzer, 1802. The date of the lecture is uncertain. 44 “Geographie-Vollmer“, in: Vollmer, Johann J. W., Immanuel Kant, Physische Geographie, 4 vols., vol. 1.1, Mainz und Hamburg: Gottfried Vollmer, 1801 – 1805. The date of the lecture is uncertain. 45 “Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht” (AA 8: 15 – 31). 40

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chology. That is, Pragmatic Anthropology is neither Metaphysics (in what relation the later stand, Kant does not say in the Lectures on Anthropology), nor Empirical Psychology. A further proof of this belief, this one more detailed in its argument, is given to us in the Lectures on Metaphysics, which in this matter completely corroborate Kant’s opinion in the Lectures on Anthropology. Namely, given the division of the table of human knowledges into system and aggregate, when faced with the challenge of ascertaining Empirical Psychology with a position, Kant unequivocally states, in Met.Pölitz I, that “Empirical Psychology (…) in no way belongs to Metaphysics”46; and, in Met.-Mrongovius (1783), that Empirical Psychology “must presuppose observations to say something about the soul”47 and therefore it is simply and exclusively empirical and “does not belong” 48 in Metaphysics. The only reason why Empirical Psychology is lectured in the scope of Metaphysics, Kant adds in consonance with what he had stated previously (1772 – 73) in the Lectures on Anthropology, is because “the academic syllabus” so determines, not at all the way “how it pairs with reason”49, which is inexistent. Empirical Psychology, in a word, “had not yet grown to the point that it could constitute a special collegium”50. And so, “Empirical Psychology”, Kant concludes, “in no way belongs to Metaphysics”51 and must be understood here as a “stranger”52, a “let\basir e_r \kko cemor”53. In fact, if seen correctly, Empirical Psychology, or Anthropology, could be considered the opposite of Metaphysics. It is, Kant concludes, a “Metabasis eis allo genos”54, that is, a complete subversion of the genus of metaphysical knowledge, and therefore it must be fully dissociated from Metaphysics. Now, it may seem that all these less than favorable characteristics could also be ascribed to Pragmatic Anthropology; Kant himself seems to endorse this position, given the numerous occasions in which he seems to link “Empirical Psychology as Anthropology”, not only in the Lectures on Metaphysics. And, in all honesty, were this to be assumed, and Kant’s scheme of human knowledges, and its fundamental division into systematic and aggregational sciences, would not be questioned, rather they would be reinforced by the simple belief that the ladder of human knowledges was composed by transcendental philosophy (atop) and the whole array of metaphysical sciences (below), and that the plain soil of empirical sciences harbored not only Empirical Psychology as Anthropology, but the remaining natural and his46

AA 28.1: 175. AA 29.1: 756. 48 AA 29.1: 756. 49 AA 29.1: 757. 50 AA 29.1: 757. 51 AA 29.1: 757. 52 AA 29.1: 757. 53 AA 29.1: 757. 54 AA 29.1: 757. 47

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torical sciences. However, this is not the case – not entirely, at least. For indeed, Empirical Psychology is an historical science – and, to be sure, an Anthropology: or, at least a kind of Anthropology, which seems to be assumed even in the first two parts of the Lectures on Anthropology (Collins and Parow). This means, of course, that at least a part of Anthropology, or one of the many possible anthropologies – physiological, psychological, medicinal, pneumatological, etc. – is to be based upon experience; and, again, Kant does not deny this, not even in the later versions of his Lectures on Anthropology. The difference between Anthropology as a “psychology of observations”, and the Anthropology we know today as Kant’s, however, lies not so much in the distinction itself, but in the term that indeed caused this dissociation: the term “pragmatic”, which, as was seen, arose around 1775, upon the division of the field of human knowledges between “systems” and “aggregates”. For, until 1775 – as was seen – Kant distinguishes Empirical Psychology, and as such Anthropology, from Metaphysics; but not Anthropology from Empirical Psychology. This means that, until this point in time, but also in Kant’s reflection on the question, all the previous flaws from Empirical Psychology were also those of Anthropology, and Anthropology was by then only a rising science, with no connection to reason, no sufficient knowledge to be considered a science or an academic subject, and hence had nothing to offer to Metaphysics. With the advent of the reflection on the “pragmatic”, however, this changes. For, namely, if pragmatic, the Anthropology is certainly no Metaphysics, but nor is it an Empirical Psychology. That is, it is not a metaphysical science, because in part it is indeed based on the experiential facts of the human being, but it is no psychological-historical science, because in part it is a system of the cognitions, the conduct and life of the human being. Pragmatism, so to say, is the individuation factor of Anthropology in the field of human knowledges. And, as such, one cannot ascribe Pragmatic Anthropology with the characteristics which render Empirical Psychology the kind of anthropology that it is. Namely, Pragmatic Anthropology does not have a psychologizing, a physiological, a medicinal character. It has no character at all apart from that of its pragmatism, which sets out to regard Man in its practical conduct, that is, in its natural application to the world. Moreover, Pragmatic Anthropology does not lack materials, as does Empirical Psychology, rather its great comprehensiveness conveys a total knowledge of the human soul in the Universe, studying the I not only as soul (Ich als Seele), but also, in connection with its blood sister, Physical Geography, the I as world (Ich als Welt). Furthermore, precisely due to this amplest of cognitions, Pragmatic Anthropology succeeds in bringing the experience it gathers, through agreeable concordances, to the condition of principles; principles which Anthropology and Geography, as the propaedeutic of human knowledge, convey to rational sciences, thereby indeed dealing with reason, pairing with reason for their mutual benefit and therefore rendering themselves indispensable to reason. And, last but not least, unlike Empirical Psychology, Pragmatic Anthropology had by then not only attained a growing stage, a maturity and thematic abundance that allowed it to be a science – so presents it Kant

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himself in 177255 – but it had been long lectured by Kant as an academic discipline56. And so, for all these reasons, “from this [Empirical Psychology] can still be distinguished an Anthropology, if by this we understand a knowledge of the human being insofar as it is pragmatic”57. Now, given this definitive difference between Pragmatic Anthropology and Empirical Psychology, we ask: how does this translate into their position in Kant’s field of human knowledges? Certainly, Empirical Psychology is to be included among the (merely) empirical sciences, in the plain soil of human knowledges; it is not to be considered anywhere in the vertical ladder of rational knowledge. It, so to say, involves the knowledge of the sensible (the soul), and the sensible only; and in so doing, it presupposes the knowledge of the soul for the soul’s sake, devoid of any further consideration or application. And certainly, Pragmatic Anthropology is to be dissociated from this extensive position; for, while it does not deal with reason and hence does not depart from rational principles, as do the metaphysical sciences, nor does it merely consider the sensible as does Empirical Psychology. Instead, it considers the soul in its broad application to the world – which includes both rational and sensible applications of the soul –, and not just any application, as Man is, but a prudent application, as Man should be. That is, anthropology requires not sensibility, nor reason, but the power of judgment; and not just the power of judgment, but a particular talent of the latter, namely, one that can fathom the secret dispositions that Nature has for Man as a species and thus set Man in the right track towards not only discerning them, but putting them into practice, thus bringing to prudent concatenation, or sound mutual consideration, Man’s theory and practice, rational and empirical, in respect to a higher purposeful destination and towards a greater good. And so, we conclude, in the table of human knowledges certainly Pragmatic Anthropology can only be ascribed a mediating position, in consonance with its mediating function. So it is. For, given the previous indications, and given Kant’s (only partial) individuation of Pragmatic Anthropology from all other sciences, one would conclude that the only possible position for Pragmatic Anthropology is precisely one between metaphysical and historical sciences, in what could be considered as a third – cosmological, or indeed cosmopolitical – dimension of the field of human knowledge. Here, in the ever ampler angle that opens around the vertex between mere reason and mere sensibility, Pragmatic Anthropology, as the study of Man as a species, is not just the gateway, but the only possible way towards setting in contact both rational and empirical sciences, as well as both the opposite dimensions of human knowledge, towards a more complete and comprehensive understanding of the human being. It is, so to say, the broad field where individuals come to understand their purpose as a divided, bidimensional, ra55

See AA 25.1: 7 – 8; AA 25.1: 470 – 473. See AA 10: 145 – 146. 57 “From it [Empirical Psychology] can one still distinguish Anthropology, if by this one understands a knowledge of Man insofar as it is pragmatic“ (AA 29.1: 757). 56

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tional and empirical species, and, in so doing, strive towards a better comprehension of the ends of Nature, as laid by Providence, and Man’s need to accommodate to them, towards a more inclusive, truly universal, in a word, pluralistic (tridimensional) vision of humanity. A position which, in a word, has nothing to do with the meek potentialities that Kant ascribes to Empirical Psychology, and which, given Empirical Psychology’s omissions in this regard, could be considered as the defining factor in the separation between Pragmatic Anthropology and Empirical Psychology, thus corroborating the vision of those who defend the complete and unconditional nonidentity, or difference, between these two sciences. This separation, however, let it be said as a conclusion, is but a mere phenomenon – a result, here shown by Kant’s voice, from a much deeper cause, in Kant’s spirit. Indeed, in Kant’s view, Empirical Psychology and Pragmatic Anthropology are not one in the same, and above stand the palpable reasons for such a dissociation. But if here one wished to once again, and for one last time, resume our attempt at a history of the term ‘pragmatic’ in Kant, one would see that this moment, and the conclusions deriving from it (as shown above) are the result of a crucial phase in this history, as well as a relevant point at the evolution of Kant’s anthropological thought, but not just for the above stated results. The reason for this is by now plain to see: for if one merely considers the onset of Kant’s usage of the term ‘pragmatic’, which occurs from 1775 onwards (Anthr.-Friedländer), and his shift in the conception of the division of human knowledges, which occurs around the same date (Lecture on Encyclopedism, Met.-Pölitz I, among others), then one should be finally convinced that both these facts are inter-relatable and should not be considered separately. Indeed, it is our view that the fact that only around 1775 (not in 1772, or earlier) does Kant resort to the term ‘pragmatic’ to describe his anthropology, and the fact that only around 1775 does Kant bring to word a defined, bi- or tri-dimensional scheme, forever defining his vision of the problem of the division and mutual relations between the various dimensions of human knowledge, should be considered in mutual attention, insofar as they explain each other. These facts, we think, are indissociable, and mutually influence each other to the point that one caused the other one to be, and vice-versa. In other words, on the one hand, it is our view that Anthropology only became ‘pragmatic’ when and because of the fundamental division of the human knowledges – the express division of the scheme into two dimensions, but its more than implicit sub-division into three dimensions, the third dimension serving as a mediating, expanding dimension between the latter two, only seems to prove this. That is, it was by thus determining human knowledges into extreme, apparently incontactable dimensions, that Kant noticed a gap in his system, a hiatus in the possible relations between human knowledges, and thus perceived the need for a knowledge that served as a mediator, hence acting as a modulator of other sciences as well as being modulated by the latter. On the other hand, it is our view that Kant’s fundamental division of the human knowledges, and its respective trilinear scheme only came to be because by then Kant had already noticed the abovementioned incongruences in the general alignment of all human sciences, between Metaphysics, Em-

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pirical Psychology and Anthropology, and the subsequent need not only for a linear division of such knowledges, but for a supplementary mode – the pragmatic or anthropological – of thinking the human. That is, the pragmatic, in its novelty, would expand the knowledge of the human being inasmuch as it inaugurated not a dry, cloistered, inapplicable universality as is that of rationality, nor an ever-changing, infinite, baseless universality as is that of the empirical, but insofar as it allowed for a mutual consideration of the latter, depriving them of their worse qualities while preserving and promoting their best ones, towards a reevaluation and reconfiguration of human knowledge. And so, we conclude: this incontrovertible interpenetration, or interdependence between Kant’s pragmatism and Kant’s reformulation of the palette of human knowledges, from which derive all the diverging factors between sciences as – and only this – should be seen and understood as the true individuating factor of Kant’s anthropological thought, as well as the true dissociating factor between Pragmatic Anthropology and Empirical Psychology. And, as such, one could state that it is the cosmopolitical, the pluralistic character of Pragmatic character of Anthropology that dissociates it from all other sciences and establishes a new relation between the latter, but it is its pragmatism that indeed constitutes it as a new dimension of human knowledge in Kant’s thought. References Adelung, Johann Christoph: Versuch eines vollständigen grammatisch-kritischen Wörterbuches der Hochdeutschen Mundart, 5. Bd., Leipzig 1774 – 1786. Kant, Immanuel: Gesammelte Schriften. Hrsg.: Bd. 1 – 22: Preussische Akademie der Wissenschaften, Bd. 23: Deutsche Akademie der Wissenschaften zu Berlin, ab Bd. 24: Akademie der Wissenschaften zu Göttingen, Berlin 1900 ff. (AA). Rink, Friedrich Theodor: Vorlesungen über Physische Geographie, in: Immanuel Kant’s Physischer Geographie, Königsberg 1802. Starke, F. C.: Immanuel Kants Anweisung zur Menschen- und Weltkenntnis, Leipzig 1831. Vollmer, Johann J. W.: Immanuel Kant, Physische Geographie, 4 vols., vol. 1.1, Mainz und Hamburg 1801 – 1805.

Kant on the (im)possibility of attaining perpetual peace By Henny Blomme

I. The infinitely progressing approximation Kant concludes his philosophical essay On Perpetual Peace with the following short paragraph: “If it is a duty, and if at the same time there is founded hope, to make real – if only by an infinitely progressing approximation – the state of public right, perpetual peace, which follows the so far falsely so called peace agreements ([which are] actually armistices), is not an empty idea, but rather a task that, when gradually dissolved, constantly approaches its goals (because hopefully the times in which the same progress is made will become shorter and shorter)”1.

According to this passage, perpetual peace is not merely some kind of illusory concept, but a real task for us. And when we take up this task, its goal will come closer. Strangely, ‘perpetual peace’ seems to be both the task and the goal of the task. So, while we are actively committing ourselves to the realization of perpetual peace here on earth, we gradually solve the task it represents, and by this the goal (realized perpetual peace) comes “ever closer”. Still according to Kant, the condition that must be fulfilled in order for perpetual peace not to be an empty idea but, instead, something that can realistically be presented as a task, is the realization of the “state of public right”. But this state of right is also both a task and a goal, and it adds to confusion that Kant does not even guarantee the possibility of a successful completion of this task, which he claims to be the condition for the realization of perpetual peace. On the one hand, we have a duty to “make real” the state of public right, and there is also “justified hope” that this task can be tackled with some success. On the other hand, however, it remains unclear whether this state can be definitively realized or “only in an infinitely progressing approximation”. In any case, also the idea of public right is not an empty idea, 1 Kant, ZeF, B 111 f., 08: 386: „Wenn es Pflicht, wenn zugleich gegründete Hoffnung da ist, den Zustand eines öffentlichen Rechts, obgleich nur in einer ins Unendliche fortschreitende Annäherung wirklich zu machen, so ist der e w i g e F r i e d e , der auf die bisher fälschlich so genannten Friedensschlüsse (eigentlich Waffenstillstände) folgt, keine leere Idee, sondern eine Aufgabe, die nach und nach aufgelöst, ihrem Ziele (weil die Zeiten, in denen gleiche Fortschritte geschehen, hoffentlich immer kürzer werden) beständig näher kommt.“

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and this is even more evident if we look at what Kant writes at the end of the third definitive article: “[The idea] of a cosmo-political Right is no fantastic or overstrained mode of representing Right, but is a necessary complement of the unwritten Code of national and international Right towards the Public Right of mankind as such, and thus towards perpetual peace, and it is only under this condition that men may flatter themselves with the belief that they are making a continual approximation to its realization”2.

If one relies on these passages, we can neither confirm with certainty that perpetual peace will one day really exist, nor can we claim that, principally, it will never be possible to realize. However, the treatise on perpetual peace contains (1) some passages in which Kant seems to assume that perpetual peace will in all cases sooner or later be realized. The title of the first addendum3 of the treatise, for instance, is “On the Guarantee of Perpetual Peace” 4. What kind of guarantee is this? We will come back to this in the third section of this text. It also contains (2) some passages that seem to imply that Kant only has in mind a so-called ‘peace of reason’ (Vernunftfrieden)5, in the sense of an utopian ideal; in other words: a concept of reason without objective reality. To assume that such peace can be realized would then simply be naive. Accordingly, in the following section I will start with the discussion of the view that perpetual peace is principally empirically unrealizable.

II. The unexecutable idea In his 1796 review of the Perpetual Peace Essay, Fichte warned against conceiving of Kant’s idea of perpetual peace as a mere heart-warming illusion: “[The relationship] to the interest of the day, the lightness and comfort of the lecture, and the unappealing way in which the sublime, all-encompassing ideas presented in it are laid down, may tempt several not to attach to it the importance which it has in our opinion, and to regard its main idea as nothing more than a pious desire, an inconsequential proposal, a beautiful dream, which at best may serve to pleasantly and momentary entertain human-friendly minds”6. 2

Kant, ZeF, B 46, 08: 360: „[Die Idee] eines Weltbürgerrechts [ist] keine phantastische und überspannte Vorstellungsart des Rechts, sondern eine notwendige Ergänzung des ungeschriebenen Kodex sowohl des Staats- als Völkerrechts zum öffentlichen Menschenrechte überhaupt, und so zum ewigen Frieden, zu dem man sich in der kontinuierlichen Annäherung zu befinden nur unter dieser Bedingung schmeicheln darf.“ 3 In the first edition just called “addendum”, since it lacks the second addendum of the following editions. 4 Kant, ZeF, B 47, 08: 360. 5 I borrow this term – which Kant does not use – from the title of a collection of essays on Kant’s perpetual peace (see Kodalle (1996)). 6 Fichte (1796), p. 81. See Buhr/Dietzsch (1984), p. 93. „[Die Beziehung] auf das Interesse des Tages, die Leichtigkeit und Annehmlichkeit des Vortrags und die anspruchslose Weise, mit

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In the Doctrine of Right of 1797, however, Kant himself seems to explicitly claim that perpetual peace is “an unworkable idea”. In § 61, he writes: “Since the natural state of the peoples, just as well as individual human beings, is a state from which one is to leave in order to enter into a legal state: so, before this event, all law of the peoples and all external my and yours of the states that can be acquired or preserved by war is merely provisional, and can only apply peremptorically and become a true state of peace in a general league of states (analogous with that through which a people becomes a state). But because, if such a people’s state extends too far across vast regions, the government of the same must become impossible, and therefore the protection of every member must at last become impossible, and because, on the other hand, a multitude of such corporations will again bring about a state of war: so is of course perpetual peace (the ultimate goal of all international law) an unfeasible idea. The political principles, however, which serve the purpose of entering into such connections of states as a continuous rapprochement to the same, are not [unfeasible], but, because they represent a task based on duty, and therefore also on the right of men and states, are executable”7.

In a recent book on Kant’s practical philosophy, this passage from the Doctrine of Right is commented on as follows: “As unattainable as the lawful state conceived in the idea of perpetual peace may be, it is nevertheless a ‘task based on the law of mankind and states’ to continually work towards it. For even though according to Kant ‘perpetual peace’ is an ‘unfeasible idea’, the ‘political principles’ of working towards it in a ‘continuous rapprochement’ are ‘certainly feasible’. The ‘ideal of a legal connection of people under public law’ is a necessary and normative guiding idea, which obliges the political actors to realize ‘general and lasting peace’. The fact that the practical realization of this ideal cannot be completed, is therefore of secondary

welcher die in ihr vorgetragenen erhabenen, allumfassenden Ideen hingelegt werden, dürfte mehrere verleiten, derselben nicht die Wichtigkeit beizumessen, die sie unseres Erachtens hat, und die Hauptidee derselben für nicht mehr anzusehen als für einen frommen Wunsch, einen unmaßgeblichen Vorschlag, einen schönen Traum, der allenfalls dazu dienen möge, menschenfreundliche Gemüter einige Augenblicke angenehm zu unterhalten.“ 7 Kant, MS 06: 350 (My Italics – H.B.). „Da der Naturzustand der Völker, eben so wohl als einzelner Menschen, ein Zustand ist, aus dem man herausgehen soll, um in einen gesetzlichen zu treten: so ist, vor diesem Ereignis, alles Recht der Völker und alles durch den Krieg erwerbliche oder erhaltbare äußere Mein und Dein der Staaten bloß provisorisch, und kann nur in einem allgemeinen Staatenverein (analogisch mit dem, wodurch ein Volk Staat wird) peremptorisch geltend und ein wahrer Friedenszustand werden. Weil aber, bei gar zu großer Ausdehnung eines solchen Völkerstaats über weite Landstriche, die Regierung desselben, mithin auch die Beschützung eines jeden Gliedes endlich unmöglich werden muß, eine Menge solcher Korporationen aber wiederum einen Kriegszustand herbeiführt: so ist der ewige Friede (das letzte Ziel des ganzen Völkerrechts) freilich eine unausführbare Idee. Die politischen Grundsätze aber, die darauf abzwecken, nämlich solche Verbindungen der Staaten einzugehen, als zur kontinuierlichen Annäherung zu demselben dienen, sind es nicht, sondern, so wie diese eine auf der Pflicht, mithin auch auf dem Recht der Menschen und Staaten gegründete Aufgabe ist, allerdings ausführbar.“

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Kant on the (im)possibility of attaining perpetual peace importance for Kant. […] The approximation to an empirically unfinishable ideal of peace is […] an unconditional moral and rational demand on politics”8.

According to this interpretation, perpetual peace is a practically unfeasible idea, although it is at the same time our duty to approach it. This is problematic, however, for how is it possible to seriously aspire to something that we know to be unrealizable? Stronger still: How can we seriously consider the task to strive for a certain goal to be a duty, if it is impossible for this goal to ever be achieved? At the very beginning of the appendix to Perpetual Peace, Kant writes: “Already in itself, morality is a practice in objective meaning, as the totality of unconditionally imperative laws according to which we are to act, and, once one has conceded the authority of this concept of duty, it is obvious inconsistency to still want to say that one cannot act like that. For then this concept is automatically removed from morality (ultra posse nemo obligatur)”9.

On the one hand, it is true that one need not be sure that an action will be successful in order to do or plan that action. This also applies to those actions that are obligatory: We do not need the theoretical certitude that the goal of the action can be achieved in order to recognize the action itself as a duty. On the other hand, the goal of action must not be perceived as a mere illusion. Without justified, or as Kant says, “well-founded hope”10 that the goal (perpetual peace) can be realized, there can be no obligation to work towards it. Thus, in order for perpetual peace nevertheless to be regarded as a duty, the claim from the Doctrine of Right – perpetual peace is “an unfeasible idea” – must be understood in a less radical way. Moreover, to understand it in such less radical way conforms to the context within which Kant makes the claim. Indeed, on closer inspection, Kant is not asserting that the empirical impossibility of the ideal of peace has already been established. Rather, the impossibility of realizing perpetual peace is here associated with a certain political constellation. As was already clear from the beginning 8 Laschet (2011), S. 303: „So unerreichbar der in der Idee eines ewigen Friedens gedachte Rechtszustand auch sein mag, es ist gleichwohl eine ,auf dem Recht der Menschen und Staaten gegründete Aufgabe‘, auf ihn fortwährend hinzuarbeiten. Denn wenngleich der ,ewige Friede‘ nach Kant eine ,unausführbare Idee‘ ist, so sind die ,politischen Grundsätze‘, auf ihn in einer ,kontinuierlichen Annäherung‘ hinzuwirken, ,allerdings ausführbar‘. Das ,Ideal einer rechtlichen Verbindung der Menschen unter öffentlichen Gesetzen‘ ist eine notwendige und normative Leitidee, welche die politischen Akteure zu einer ,allgemeinen und fortdauernden Friedensstiftung‘ verpflichtet. Dass die praktische Realisierung dieses Ideals nicht zu vollenden ist, ist für Kant daher letztlich von sekundärer Bedeutung. […] Die Annäherung an ein empirisch unvollendbares Friedensideal ist […] eine unbedingte moralische Vernunftforderung an die Politik.“ 9 Kant, ZeF, B 71, 08: 370: „Die Moral ist schon an sich selbst eine Praxis in objektiver Bedeutung, als Inbegriff von unbedingt gebietenden Gesetzen, nach denen wir handeln sollen, und es ist offenbare Ungereimtheit, nachdem man diesem Pflichtbegriff seine Autorität zugestanden hat, noch sagen zu wollen, dass man es doch nicht könne. Denn alsdann fällt dieser Begriff aus der Moral von selbst weg (ultra posse nemo obligatur).“ 10 Kant, ZeF, B 111, 08: 386.

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of our analysis, the realization of peace is conditioned by the realization of the state of public law. But, according to Kant, the realization of public law as international law can be imagined in two ways. At first, we form the idea that a global state, a world republic, must be founded. Kant writes that, when it comes to realizing perpetual peace, the idea of a world state is right in thesi, but must be rejected in hypothesi11. This is usually understood as meaning that Kant considers the idea of a world state to be correct in theory, but problematic in practice. And it is true that Kant sketches at least two problems that would occur if one works towards the empirical realization of the idea of a world state: (1) it is not realistic to assume that one day, different peoples will actually want to unite themselves as one people; (2) the realization of the world state would also have to confront a more logistic problem, because “if such an international state were to extend too far over large areas, its government would finally become impossible, including the protection of every member”12. The alternative of founding several smaller states of nations must also fail, because “a multitude of such corporations […] again brings about a state of war”13. Precisely because the idea of the world state causes difficulties in practice, one must be satisfied with the realization of a ‘surrogate’: a League of Nations as a “peace alliance” [Friedensbund]14. It seems not very Kantian, however, if Kant in Perpetual Peace were really to reject, out of empirical-practical considerations, an idea that he considered to be theoretically correct. Just before, in his Gemeinspruch-Essay (1793), Kant had dismissed the possibility of a relevant dissonance between theory and practice, especially also with respect to international law. Let us read again what Kant had written there about the idea of an international state: “Nowhere does human nature appear less friendly than in the relations of entire peoples against one another. No state is secured against another for a moment because of its independence, or its own nature. […] Here, however, no other means is possible than an international law based on public laws accompanied by power, to which every state would have to submit (according to the analogy of a civil or constitutional law of individual people). […] But with respect to such coercive laws, it will be said that states will never submit themselves to them; and the proposal for a general state of nations, under whose authority all individual states are to voluntarily make themselves comfortable in order to obey its laws, no matter how good it may sound in the theory of an abbot of St. Pierre, or of a Rousseau, it does not, however, apply to practice: as it does then also apply to great statesmen, but even more so to heads of state, as a pedantic-childish idea that has emerged from school, and at any time has been laughed at. I for one, however, trust in the theory that proceeds from the principle of law, how the relationship between people and states should be, and which praises the maxim of the earth gods, to proceed in their disputes at any time in such a way that such a general international state is 11

Vgl. ZeF, B 38, 08: 357. Kant, MS, 06: 350. 13 Ibid. 14 Vgl. Kant, ZeF, B 38, 08: 357.

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Kant on the (im)possibility of attaining perpetual peace initiated by it, and to accept it as possible (in practice), and that it can be; – but at the same time also (in subsidium) by the nature of things, which forces one where one does not want to (fata volentem ducunt, nolentem trahunt). With the latter, human nature is then also brought into play: which, since respect for law and duty is still alive in it, I cannot regard as so absorbed in evil, or want that moral and practical reason, after many unsuccessful attempts, should not finally prevail over the same, and should also present it as gracious. Thus, even in cosmopolitan consideration, it remains the same with the claim: What applies to theory out of reasonable grounds [Vernunftgründen], also applies to practice”15.

However, these conclusions do not provide a clear solution to the problem of the relationship between the world state and the League of Nations. Although they solve one part of the problem, they obscure another. On the one hand, Kant claims that any empirical-practical reservations that can be had against the international state conceived as a world state can never be sufficient to reject the idea as an in itself unproblematic notion of reason. On the other hand, however, this passage obscures the fact that the idea of a world state should actually be rejected. And if not for empiricalpractical reasons, then probably for non-empirical, i. e. reasonable reasons. Indeed, the idea of a world state is irrational because it is contradictory when conceived from the perspective of international law. And this is exactly what Kant had already hinted at in his Gemeinspruch-essay, despite its conclusion (quoted above). Some paragraphs before it was said: “Just as all-sided violence and the resulting need finally had to bring a people to a resolution to submit to the compulsion which reason itself prescribes as a means, namely to submit to public law and to enter into a civic constitution: so also the misery resulting from the con15 Kant, TP, 08: 312 f.: „Die menschliche Natur erscheint nirgend weniger liebenswürdig, als im Verhältnisse ganzer Völker gegen einander. Kein Staat ist gegen den andern wegen seiner Selbstständigkeit, oder seines Eigenthums, einen Augenblick gesichert. […] Nun ist hierwider kein anderes Mittel, als ein auf öffentliche mit Macht begleitete Gesetze, denen sich jeder Staat unterwerfen müsste, gegründetes Völkerrecht (nach der Analogie eines bürgerlichen oder Staatsrechts einzelner Menschen) möglich. […] Aber solchen Zwangsgesetzen, wird man sagen, werden sich Staaten doch nie unterwerfen; und der Vorschlag zu einem allgemeinen Völkerstaat, unter dessen Gewalt sich alle einzelne Staaten freiwillig bequemen sollen, um seinen Gesetzen zu gehorchen, mag in der Theorie eines Abt von St. Pierre, oder eines Rousseau, noch so artig klingen, so gilt er doch nicht für die Praxis: wie er denn auch von grossen Staatsmännern, mehr aber noch von Staatsoberhäuptern, als eine pedantischkindische aus der Schule hervorgetretene Idee, jederzeit ist verlacht worden. Ich meinerseits vertraue dagegen doch auf die Theorie, die von dem Rechtsprincip ausgeht, wie das Verhältniss unter Menschen und Staaten seyn soll, und die den Erdengöttern die Maxime anpreist, in ihren Streitigkeiten jederzeit so zu verfahren, dass ein solcher allgemeiner Völkerstaat dadurch eingeleitet werde, und ihn also möglich (in praxi), und dass er seyn kann, anzunehmen; – zugleich aber auch (in subsidium) auf die Natur der Dinge, welche dahin zwingt, wohin man nicht gerne will (fata volentem ducunt, nolentem trahunt). Bei dieser letzteren wird dann auch die menschliche Natur mit in Anschlag gebracht : welche, da in ihr immer noch die Achtung für Recht und Pflicht lebendig ist, ich nicht für so versunken im Bösen halten kann, oder will, dass nicht die moralisch praktische Vernunft nach vielen misslungenen Versuchen endlich über dasselbe siegen, und sie auch als liebenswürdig darstellen sollte. So bleibt es also auch in kosmopolitischer Rücksicht bei der Behauptung: Was aus Vernunftgründen für die Theorie gilt, das gilt auch für die Praxis.“

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stant wars, in which states in turn seek to belittle or subjugate one another, must ultimately lead them, even against their will, either to enter into a cosmopolitan constitution; or if such a state of general peace […] is even more dangerous on another side of freedom by bringing about the most terrible despotism, then it must nevertheless force this misery into a state which, although not a cosmopolitan common being under one head, is nevertheless a legal state of the Federation according to a jointly agreed international law”16.

Here it remains open whether the attempt to step into a cosmopolitan constitution leads to the “most terrible despotism”. Kant then explains in Zum ewigen Frieden that this is actually probable, where the two alternatives (world state vs. League of Nations) are no longer merely placed side by side in an either-or-construction, but the idea of a world state is expressly expelled as unreasonable in the realization of peace because of it being contradictory. Such a state would have a monopoly on the use of force and this would mean that the various peoples would recognize a ‘world state power’. The concept of such a nation-state is already contradictory, “because every state contains the relationship of a superior (legislator) to an inferior (obeying, namely the people), but many peoples in one state would make up only one people, which […] contradicts the precondition”. In other words, it would no longer be a question here of a solution within the context of the law of peoples, since in such a world state the peoples would melt together into one people: “The idea of international law presupposes the segregation of many mutually independent neighboring states, and, although such a state is in itself a state of war […]: even this, according to the idea of reason, is better than the amalgamation of the same, by one power overgrowing the other and merging into a universal monarchy, because the laws with the increased extent of government lose more and more of their force, and a soulless despotism, after having eradicated the seeds of good, finally falls into anarchy”17.

That Kant then writes in the Doctrine of Right: “thus perpetual peace […] is certainly an unfeasible idea,” in my opinion refers only to this first solution, which is 16 Kant, TP, 08: 310 f.: „So wie allseitige Gewalttätigkeit und daraus entspringende Not endlich ein Volk zur Entschließung bringen mußte, sich dem Zwange, den ihm die Vernunft selbst als Mittel vorschreibt, nämlich dem öffentlicher Gesetze zu unterwerfen und in eine staatsbürgerliche Verfassung zu treten: so muß auch die Not aus den beständigen Kriegen, in welchen wiederum Staaten einander zu schmälern oder zu unterjochen suchen, sie zuletzt dahin bringen, selbst wider Willen, entweder in eine weltbürgerliche Verfassung zu treten; oder ist ein solcher Zustand eines allgemeines Friedens […] auf einer andern Seite der Freiheit noch gefährlicher, indem er den schrecklichsten Despotismus herbeiführt, so muß sie diese Not doch zu einem Zustande zwingen, der zwar kein weltbürgerliches gemeines Wesen unter einem Oberhaupt, aber doch ein rechtlicher Zustand der Föderation nach einem gemeinschaftlich verabredeten Völkerrecht ist.“ 17 Kant, ZeF, B 63, 08: 367: „Die Idee des Völkerrechts setzt die Absonderung vieler von einander unabhängiger benachbarter Staaten voraus, und, obgleich ein solcher Zustand an sich schon ein Zustand des Krieges ist […]: so ist doch selbst dieser, nach der Vernunftidee, besser als die Zusammenschmelzung derselben, durch eine die andere überwachsende, und in eine Universalmonarchie übergehende Macht, weil die Gesetze mit dem vergrösserten Umfange der Regierung immer mehr an ihrem Nachdruck einbüßen, und ein seelenloser Despotism, nachdem er die Keime des Guten ausgerottet hat, zuletzt doch in Anarchie verfällt.“

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contradictory under the law of peoples. If I am right, the argumentation in § 61 of the Doctrine of Right should be summarized as follows: If one tries to bring about perpetual peace as following necessarily from certain actions, then one would have to try to establish a nation-state conceived as a world-state; but since due to the nature of the peoples and their rights it is not to be seen how this can succeed otherwise than with war-like measures, the idea of perpetual peace turns into a non-realizable idea. The world state, which for purely abstract thinking is the logical solution to the problem of perpetual peace, proves to be incapable of guaranteeing peace in reasonable thinking – i. e. thinking in terms of content, i. e. reckoning with the nature of man, the peoples, the earth and the ways of government. Precisely because of the failure of the idea of a world republic, of which the mere concept is in a certain sense contradictory, we then, secondly, form the idea of a voluntary League of Nations. In this case no supreme legislative power is recognized by the states and no international state is founded. But if every state now says: “There shall not be a war between me and other states, although I do not recognize any supreme legislative power which is mine and to which I secure its right,” 18 it is not to be seen, according to Kant, where the trust that the rights of every state are secured should be based on, “if it is not the surrogate of the civil social union, namely the free federalism, which reason must necessarily associate with the concept of international law, if something is to remain to be thought of everywhere”19. Precisely because, for reasons of the law of peoples, the path to the world republic is illusory if, as the idea of perpetual peace prescribes, it is to be a peaceful path, a surrogate path must be formed, namely a League of Nations as a “League of Peace”. It is thus only because this idea of a League of Nations does not come up first when abstract from the nature of the people among which perpetual peace should be established, that we are dealing with a surrogate. As Kant explains in the second definitive article, such a confederation does not deal with the acquisition of “any power of the state”, but merely “with the preservation and safeguarding of the freedom of a state for itself and at the same time of other allied states, without these nevertheless […] being allowed to subject themselves to public laws and a coercion under them”20. In the Doctrine of Right, such a peace alliance is then also called a “permanent congress of states”21. It is important that the accession to this congress should be a free decision of the respective states and that it is about an “at all times detachable union of different states”22. Only by striving for this second solution as a surrogate for the world republic can “the idea of a public right to be established for the peoples to decide their disputes in a civil way, as it

18

Kant, ZeF, B 36, 08: 356. Kant, ZeF, B 36 f., 08: 356. 20 Kant, ZeF, B 35, 08: 356. 21 Kant, MS, 06: 350. 22 Kant, MS, 06: 351.

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were by a process, not by barbaric ones (in the manner of the savages), namely by war, be realized”23. At the end of the second definitive article, Kant summarizes the facts discussed and repeats them: “According to reason there can be no other way for states in relation to each other to get out of the lawless state which contains nothing but war than to give up their wild (lawless) freedom, just as individual people do, to form themselves into public coercive laws and thus a (admittedly always growing) state of nations (civitas gentium) which in the end would concern all peoples of the earth. But since they do not want this at all according to their idea of international law, and therefore reject in hypothesi what is correct in thesi, in place of the positive idea of a world republic (if not everything is to be lost), only the negative surrogate of an existing and ever-expanding covenant that fends off war can stop the stream of the […] hostile inclination, but with a constant danger of its outbreak”24.

One can now ask whether this “constant danger” of an outbreak of the “righteous, hostile propensity,” even in the case of the realization of a peace alliance, does not precisely guarantee the impossibility of perpetual peace. Is this the reason why Kant feels compelled in the peace-treaty to guarantee perpetual peace externally, i. e. independently from the human will and duty?

III. The guarantee of perpetual peace The main purpose of the definitive articles is to provide the rules that make it possible to decide impartially about international legal disputes. Those rules thus should make sure that the established peace is not broken. The first addendum, “On the Guarantee of Perpetual Peace”, is about showing how nature itself guarantees peace by forcing people to organize themselves in a certain way. Kant distinguishes two steps in his proof that nature itself guarantees peace. Firstly, he describes the state “that nature has organized for the persons acting on its great scene”25. This state,

23

Kant, MS, 06: 351. Kant, ZeF, B 37 f., 08: 357: „Für Staaten im Verhältnisse untereinander kann es nach der Vernunft keine andere Art geben, aus dem gesetzlosen Zustande, der lauter Krieg enthält, herauszukommen, als daß sie, ebenso wie einzelne Menschen, ihre wilde (gesetzlose) Freiheit aufgeben, sich zu öffentlichen Zwangsgesetzen bequemen und so einen (freilich immer wachsenden) Völkerstaat (civitas gentium), der zuletzt alle Völker der Erde befassen würde, bilden. Da sie dieses aber nach ihrer Idee vom Völkerrecht durchaus nicht wollen, mithin, was in thesi richtig ist, in hypothesi verwerfen, so kann an die Stelle der positiven Idee einer Weltrepublik (wenn nicht alles verloren werden soll) nur das negative Surrogat eines den Krieg abwehrenden, bestehenden und sich immer ausbreitenden Bundes den Strom der rechtscheuenden, feindseligen Neigung aufhalten, doch mit beständiger Gefahr ihres Ausbruchs.“ 25 Kant, ZeF, B 52, 08: 362. 24

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says Kant, makes “peacekeeping necessary in the end”26. Secondly, he explains how nature makes this peacekeeping necessary. I will stick to this division into two steps during the following discussion of the first addendum. First of all, it must be noted that Kant’s concept of ‘nature’ is something quite different from what we nowadays take it to be. For us, the word ‘nature’ almost exclusively refers to the surface of the earth and the fauna and flora that can be found on it. But for Kant, the term ‘nature’ was much broader. Kant distinguishes between nature in sensu formali, which expresses the essence of a thing, and nature in sensu materiali, which concerns a certain object area, namely the totality of the objects of the senses. For example, in the Critique of pure reason, nature almost always means inner and outer nature. And also when Kant speaks of nature in the peace-treatise, we must give this word a less limited meaning than it has today. Consequently, nature in the material sense is everything that can be an object of empirical cognition, that is: not only the earth, the surface of the earth (mountains, seas, etc.), fauna and flora, but also the human being itself insofar as it is an animal-like being, and also human behavior, insofar as it is determined by empirical (physical, psychological, …) laws and/or regularities. In his own argument, Kant also follows this particular order when enumerating the objects of nature – it is an enumeration that culminates in human nature: earth, the surface of the earth, fauna & flora, man, human behavior. If we consider the earth as a planet, nature is spherical, which means that its surface is not infinite. If by nature we understand the surface of the earth, then it is organized in such a way that man can live in all parts of the earth. This has to do with the fact that nature qua fauna and flora enables people to live even in areas that were initially perceived to be hostile to humans – a fact that, according to Kant, must arouse our admiration: “It is admirable that in the cold deserts near the Arctic Ocean the moss still grows, which the reindeer scrapes out under the snow in order to be itself the food or also the means of transport of the [local inhabitants]; or that the salty sandy deserts still contain the camel, which seems to have been created, as it were, to travel through them in order not to leave them unused. But the purpose shines even more clearly when one becomes aware of how, besides the furred animals on the shore of the Arctic Ocean, seals, walruses, whales feed their flesh and their tran fire for the local inhabitants. Most of all, however, nature’s precautions arouse admiration through the driftwood for what it brings […] to the areas without vegetation, without which material they could not prepare their vehicles and weapons or their huts for their stay; where they then have enough to do with the war against the animals in order to live peacefully among themselves”27. 26

Kant, ZeF, B 52, 08: 362 f. Kant, ZeF, B 53, 08: 363: „Daß in den kalten Wüsten am Eismeer noch das Moos wächst, welches das Rentier unter dem Schnee hervorscharrt, um selbst die Nahrung oder auch das Angespann des Ostjaken oder Samojeden zu sein; oder daß die salzigen Sandwüsten doch noch dem Kamel, welches zu Bereisung derselben gleichsam geschaffen zu sein scheint, um sie nicht unbenutzt zu lassen, enthalten, ist schon bewundernswürdig. Noch deutlicher aber leuchtet der Zweck hervor, wenn man gewahr wird, wie außer den bepelzten Tieren am Ufer 27

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Kant further observes that, to a certain extent, human nature is itself warlike: “The war itself does not need any special motive, but seems to be grafted on human nature, and even as something noble, for which man is inspired by the impulse of honor, without selfish driving forces”.28 And it is only through war that man is “driven everywhere, even to the most inhospitable regions, to populate them”.29 In this respect, nature has ensured that men could not only live everywhere on earth, but should also “live everywhere, even if that happens against their inclination, and even without any concept of duty, which would impose this by means of a moral law”30. If people populate all the regions of the earth, the question is how nature, starting from this state, makes peacekeeping necessary. In this second step of his argumentation, Kant is concerned with showing how nature qua man (i. e. empirical human nature) ensures that what man should do as a result of his non-empirical condition, i. e. according to moral law (in order to bring about perpetual peace), is done anyway – even if it is not done out of duty. Empirical human nature (as human inclination) now assures this “according to all three relationships of public law [:] state law, international law and cosmopolitan law“ 31. It is not excluded that a group of people can live together peacefully without submitting to a public legal external constraint. In such a “natural state”, one could not speak of ‘injustice’ but only of ‘lawlessness’. Since even in a natural state there are always provisional acquisitions, there is always the danger that the (provisional) right to these acquisitions will be denied. In a state of lawlessness one could in this case not turn to a competent judge. But, according to Kant, even if a people “were not compelled by internal displeasure to submit to the coercion of public laws, war would still do it from the outside, in that, according to the aforementioned ordering of nature [Naturanstalt, i. e. the spread of people all over the world – H.B.], every people finds before it another people pushing it to its neighbor, against whom it must inwardly form a state in order to be equipped as a power against it”32. des Eismeeres noch Robben, Walrosse, Walfische an ihrem Fleische Nahrung und mit ihrem Tran Feuerung für die dortige Anwohner darreichen. Am meisten aber erregt die Vorsorge der Natur durch das Treibholz Bewunderung, was sie […] diesen gewächslosen Gegenden zubringt, ohne welches Material sie weder ihre Fahrzeuge und Waffen noch ihre Hütten zum Aufenthalt zurichten könnten; wo sie dann mit dem Kriege gegen die Tiere genug zu tun haben, um unter sich friedlich zu leben.“ 28 Kant, ZeF, B 57 f., 08: 365. 29 Kant, ZeF, B 52, 08: 363. 30 Kant, ZeF, B 56 f., 08: 364. This argument does not require that humans actually do or can live “anywhere on earth”. It only requires that all larger regions that are habitable are also in fact inhabited. Habitable places on earth are inhabited. The earth is inhabited in all regions where is is habitable. See also Eberl/Niesen (2011), S. 273; Laberge (1995), S. 155; and Piché (2015). 31 Kant, ZeF, B 59, 08: 365. 32 Kant, ZeF, B 59 f., 08: 365 f.: „…nicht durch innere Mißhelligkeit genötigt würde, sich unter den Zwang öffentlicher Gesetze zu begeben, so würde es doch der Krieg von außen tun, indem nach der vorher erwähnten Naturanstalt [die Verbreitung der Menschen auf die ganze

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It is important that the state is established as a result of the selfish inclinations of man. It can thus emerge as the result of a calculation of interests. Kant illustrates this with the well-known thought experiment of a people of devils. Such people could nonetheless solve the problem of the establishment of a state, if only they happen to be reasonable. Because of the greater probability of their survival in the midst of fellows who are by principle not interested in the welfare of the other, even devils would be prepared to submit to the coercive laws of a state order. As far as the law of peoples is concerned, Kant refers to the result of the second definitive article. As we’ve seen above, Kant stated there that the foundation of a supreme world state cannot be reconciled with the idea of world peace. Only a peace alliance that leaves the states free could bring about such peace. As a mere idea, the world-republic would be the logical solution, but because of its contradictions when it is considered within the context of an idea of peace as an ideal that has to be carried by the peoples themselves, a reasonable surrogate – the peace-union – must instead be realized. Although the coexistence of many independent neighboring states cannot be a state of perpetual peace, according to the idea of reason such a state is nevertheless “better than the amalgamation of the states through one singular power that overgrows the others and merges them into a universal monarchy”33. If one conceives of a hierarchical step-ladder of political structures, I think that Kant draws a difference between a universal monarchy and a universal republic. Such an assertion, however, is not without problems. In the first definitive article, Kant not only defined the republic as the ideal form of government, he also linked this ideal with the monarchy as the ideal form of government. However, this only applies if the executive power is distinguished from the legislative power. Although the republican monarchy is the ideal for Kant, this form of government has not yet existed because no monarchy has yet been republican. When Kant, in the first addendum, talks about a universal monarchy, he does not think of a monarchy with a separation of powers. And unlike a world republic, a universal monarchy without a republican form of government would necessarily (and not only likely) be despotic and violent. Despite this, Kant gives an argument against the possibility to realize a universal monarchy, which at the same time can be related to the impossibility of realizing a world republic. Autocratic leaders may have the desire to merge many states until there is a universal monarchy, and they may thereby even have in mind the establishment of perpetual peace. But the nature of the peoples prevents this: peoples are prevented from a total mixture by “the diversity of languages and religions”34. With regard to cosmopolitan law, the natural inclination of human beings guarantees that they care above all about the selfishness of their actions, i. e. that they prefer to regard the neighboring people as trading partners rather than enemies in a war. Erde – H.B.] ein jedes Volk ein anderes es drängende Volk zum Nachbar vor sich findet, gegen das es sich innerlich zu einem Staat bilden muß, um als Macht gegen diesen gerüstet zu sein.“ 33 Kant, ZeF, B 63, 08: 367. 34 Kant, ZeF, B 64, 08: 367.

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Since the power of money is the most reliable amongst the powers that are subordinated to the power of the state, people will naturally tend to promote peace and ward off war through mediation, “as if they were therefore in stable alliances”35. The commercial spirit, which, as Kant assures, “cannot coexist with war”36, is thus itself promoting the permanent peace-congress, even without anyone ever seeing themselves forced into it by the driving forces of morality. Finally, Kant once again explains the nature of the guarantee of perpetual peace embodied in nature itself: “In this way, through the mechanism of human inclinations, nature itself guarantees perpetual peace; granted: with a certainty that is not sufficient to (theoretically) prophesy its future, but which nevertheless is sufficient for practical purposes and makes it a duty to strive for this (not merely chimerical) purpose”37.

The guarantee given by nature is certainly not absolute, but it is enough for not having to regard the concept of perpetual peace as an empty idea or an unworkable fiction. And that is all we need in order to truly recognize its promotion as our duty.

IV. Perpetual peace as an interested assumption [interessierte Annahme] In the Doctrine of Right, we do not longer find a section on the ‘guarantee of perpetual peace’. In 1796, Kant only gives one argument that is also to be found in the first addition to the treatise on peace. In § 43 [of the doctrine of right], he writes that “the earth is not a borderless plane, but a self-enclosed surface”38. This fact is then again presented in § 62 as guaranteed by nature: “Nature has enclosed them [the peoples – H.B.] all together (by virtue of the spherical shape of their abode, as globus terraqueus) within certain limits”39. Nevertheless, I do not believe that Kant here [in the Doctrine of Right] gives a different answer to the question of the feasibility of perpetual peace than the one he gives in Perpetual Peace. In the Doctrine of Right, the question at stake is the realization of perpetual peace as the duty of man and peoples, regardless of whether there may exist empirical indications as to the possibility of such peace. It cannot be proved that perpetual peace is possible, nor that it is impossible.

35

Kant, ZeF, B 65, 08: 368. Kant, ZeF, B 65, 08: 368. 37 Kant, ZeF, B 66, 08: 368: „Auf die Art garantiert die Natur durch den Mechanism in den menschlichen Neigungen selbst den ewigen Frieden; freilich mit einer Sicherheit, die nicht hinreichend ist, die Zukunft desselben (theoretisch) zu weissagen, aber doch in praktischer Absicht zulangt und es zur Pflicht macht, zu diesem (nicht bloß chimärischen) Zwecke hinzuarbeiten.“ 38 Kant, MS, 06: 311. 39 Kant, MS, 06: 352. 36

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The guarantee in the peace-treaty, on the other hand, seems to be designed to prove that perpetual peace is possible, even if Kant does not believe that he has thereby proved that it will ever actually be brought about. But which kind of possibility would this amount to? Strictly speaking, it should be a metaphysical possibility, because we have no intuition of perpetual peace. According to Kant’s theory of modalities, we thus can claim nothing with respect to the possibility of perpetual peace – by no means has its real possibility been proved (although Kant considers that practical reason proves the objective reality of the idea). But even if we cannot prove either the possibility or the impossibility of perpetual peace, it remains an obligation to try to realize it. “If someone cannot prove that a thing is, he may try to prove that it is not. If he cannot succeed with either of them (a case that often occurs), he can still ask: whether he is interested in accepting the one or the other (by a hypothesis), either in theory or in practice, i. e. either to explain a certain phenomenon […] or to achieve a certain purpose, which in turn can be either pragmatic […] or moral, i. e. such a purpose with respect to which it is a duty to impose its maxim on ourselves. – It goes without saying that it is not the assumption (suppositio) of the executability of that purpose, which is merely a theoretical and problematic judgement, that is made into a duty here (because there is no commitment to believe something), but it is with respect to the acting according to the idea of that purpose that we have a duty, even if there is not the least theoretical probability that it can be executed, although its impossibility likewise cannot be demonstrated”40.

Within the framework of our theoretical knowledge, we cannot say whether perpetual peace is possible or impossible, because we cannot evaluate metaphysical possibility. In practical terms, however, it is our duty to strive for peace, and our ability to do so is directly derived from our duty: we can work towards perpetual peace because we have to. For man, as a moral being, this duty is self-evident, since we know through pure reason that perpetual peace is the ultimate purpose of the project of international law. References Buhr, Manfred/Dietzsch, Steffen (eds.): Immanuel Kant. Zum ewigen Frieden. Mit Texten zur Rezeption 1796 – 1800, Leipzig 1984. Eberl, Oliver/Niesen, Peter: Immanuel Kant. Zum ewigen Frieden. Kommentar, Berlin 2011. Fichte, Johann Gottlieb: „Rezension“, in: Friedrich Immanuel Niethammer/Johann Gottlieb Fichte (eds.), Philosophisches Journal 4, 1796, 81 – 92. Kodalle, Klaus-Michael (ed.): Der Vernunftfrieden. Kants Entwurf im Widerstreit, Würzburg 1996. Laberge, Pierre: „Von der Garantie des ewigen Friedens“, in: Otfried Höffe (Hrsg.), Immanuel Kant. Zum ewigen Frieden, Berlin 1995, 149 – 170. 40

Kant, MS, 06: 354.

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Laschet, Oliver: Metaphysik und Erfahrung in Kants praktischer Philosophie, Freiburg/München 2011. Piché, Claude: “La Rotondité de la Terre: une chance pour la paix.”, in: Kant-Studien, 106, 2015, 371 – 397.

Prudential reasoning in Kant’s legal cosmopolitanism1 By Joel T. Klein

I. Outlines of Kant’s Legal Cosmopolitanism Kant presents the first unequivocal formulation of his juridical cosmopolitanism2 in the essay Idea of a universal history with a cosmopolitan aim (1784). According to the concept of right, there is a moral requirement to build supra-national political and juridical institutions. “The problem of establishing a perfect civil constitution is dependent on the problem of a lawful external relation between states and cannot be solved without the latter.” Therefore, states should leave the “lawless condition of savages and enter into a federation of nations, where every state, even the smallest, could expect its security and rights from this great federation of nations, from a united might and from the decision in accordance with laws of its united will”3. The notions of “united will” and “united might” point to the need for a world state. Beyond states there would be, thus, a supra-state or a second order state, that would “introduce a cosmopolitan condition of public state security”, that is “not without a principle of equality between its reciprocal effect and counter-effect, so that they may not destroy each other”4. In his time, Kant already acknowledged that states were offering to be arbiters in international conflicts, but they had been doing so without due juridical competence. Nevertheless, this could be seen as a preparation for “a future large state body [Staatskörper], of which the past has no example to show”, which might produce a “cosmopolitan condition, as the womb in which all original predispositions of the human 1

This research has received financial support by National Council for Scientific and Technological Development – CNPq/Brazil and CAPES/Alexander von Humboldt Stiftung (experience research fellowship, process number 99999.000568/2016-03). 2 Cf. Cavallar (2012). 3 Kant, IaG, AA 08: 24. All translations are quoted from The Cambridge Edition of the Works of Immanuel Kant and the quotation rules followed are those established by the Akademie Ausgabe. The abbreviations used are: TP: On the common saying: That may be correct in theory, but it is of no use in practice; ZeF: Toward Perpetual peace; KU: Critique to the power of judgment; IaG: Idea for a universal history with a cosmopolitan aim; MS: Metaphysics of morals. 4 Kant, IaG, AA 08: 26.

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species will be developed”5. In other words, a “cosmopolitan whole, i. e., a system of all states that are at risk of detrimentally affecting each other, is required”6. In the same fashion that the civil state is the necessary political institution for ending the state of war among individuals, states have to leave the state of nature where “no state is for a moment secure from others in either its independence or its property”. So, by analogy with civil right between individuals, “the only possible remedy for this is a right of nations, based on public laws accompanied by power to which each state would have to submit”7. Kant discredits the so-called “balance of power” theory as mere fantasy. It is “like Swift’s house that the builder had constructed in such perfect accord with all the laws of equilibrium that it collapsed as soon as a sparrow alighted upon it”8. In other words, “balance of power” cannot be a system of right, since the parts maintain the right to interpret or to reject the application of a law. It is exactly this flaw that Kant ascribes to Hugo Grotius, Pufendorf, and Vattel when he calls them “only sorry comforters”9. Therefore, the idea of right seems to lead to the normative requirement of a world republic: “In accordance with reason there is only one way that states in relation with one another can leave the lawless condition, which involves nothing but war; it is that, like individual human beings, they give up their savage (lawless) freedom, accommodate themselves to public coercive laws, and so form an (always growing) state of nations (civitas gentium) that would finally encompass all the nations of the earth. But, in accordance with their idea of the right of nations, they do not at all want this, thus rejecting in hypothesi what is correct in thesi; so (if all is not to be lost) in place of the positive idea of a world republic only the negative surrogate of a league that averts war, endures, and always expands can hold back the stream of hostile inclination that shies away from right, though with constant danger of its breaking out”10.

According to this quote it seems like Kant has changed position, given up the ideal of a world republic and settled for a more modest aim, the “negative surrogate of a league that averts war”. This is a misleading interpretation, however, since it is better to read Kant as describing a process in which the free federation of states turns out to be a necessary intermediate step11. 5

Kant, IaG, AA 08: 28. Kant, KU, AA 05: 432. 7 Kant, TP, AA 08: 312. 8 Kant, TP, AA 08: 312. 9 Kant, ZeF, AA 08: 355. 10 Kant, ZeF, AA 08: 357. See also “Völkerbund als Weltrepublik”, RGV, AA 06: 34. 11 This passage has aroused a great deal of debate among scholars, because it seems that Kant is arguing that, if states do not want to give up their sovereignty, then the only solution would be to accept a semi-rational alternative, a league that averts war. In order to organize the field, we can delineate three different positions: a) those who assume that Kant abandons the perspective of a world republic (Cf. Gerhardt (1995), Rawls (1999), Habermas (1997), Flikschuh (2010), and Ripstein (2009)); b) those who argue that Kant has committed a mistake by 6

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The cosmopolitan requirement is also related to the concept of right in Metaphysics of morals and it follows from the norm “act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law”12. This is so because “by my unilateral choice I cannot bind another to refrain from using a thing, an obligation he would not otherwise have; hence I can do this only through the united choice of all who possess it in common”13. There is a direct connection between the legitimate realization of my right to freedom and the concept of a civil state and the idea of an omnilateral will14. This moral requirement extends to the relationships among states: “Since a state of nature among nations, like a state of nature among individual human 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”15.

The departure from the state of nature implies renouncing savage freedom, defined precisely as the faculty in which each one might consider oneself as sovereign of his own right. States must also renounce their savage freedom, otherwise their claims of right “will always remain only provisional unless this contract extends to the entire human race”16. The question that I now want to address is why Kant admits the free federation of states as a necessary intermediate step toward the world republic and why there is a disanalogy between the emergence of states and the emergence of the world republic concerning the acceptability of coercion. In other words, why does Kant reject the universal monarchy and the legitimacy of coercion among states in the process of creation of a world republic?

abandoning the positive idea of a world republic (Cf. Carson (1988), Axinn (1989), Höffe (2006), Dodson (1993), Kersting (1996), and Lutz-Bachmann (1997)); and finally, c) those who argue that Kant has not abandoned the idea of a world republic, but has only established a league that averts war as a necessary intermediate step in a long process toward a world republic (Cf. Fichte (1796), Cavallar (1999), Kleingeld (2004; 2012), Byrd/Hruschka (2008; 2010), and Geismann (1983)). I share this third position, but the aim of this paper is not to defend this point, but to show how prudential reasoning is implied in this third option. 12 Kant, MS, AA 06: 231. 13 Kant, MS, AA 06: 261. 14 Cf. Kant, MS, AA 06: 263. 15 Kant, MS, AA 06: 350. 16 Kant, MS, AA 06: 266.

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II. Prudential reasoning in Kant’s juridical cosmopolitanism I will next address three different aspects in which prudential reasoning is important for explaining why Kant introduces the requirement of the free federation of states as an intermediate step toward the world republic, and why it is not grounded in any legitimate mutual coercion.

1. The issue of ends – the rejection of a world monarchy Several scholars have already argued that, in rejecting a world state, Kant does not repudiate a world republic, but only a world monarchy17. So, international war is preferable to a universal monarchy, “since as the range of government expands laws progressively lose their vigor, and a soulless despotism, after it has destroyed the seed of good, finally deteriorates into anarchy”18. In an analogous fashion he argues in MS that “if such a state made up of nations were to extend too far over vast regions, governing it and so too protecting each of its members would finally have to become impossible, while several such corporations would again bring on a state of war”19. Three issues are raised. Firstly, there is the relationship between the extension of a territory and a state’s capacity to establish laws and ensure the freedom of individuals. The point, however, is not the territorial extension itself, but its implication. This was a familiar topic in modern political philosophy and Kant was well aware of it. Rousseau had discussed which kind of government was more adequate for extensive territories, but also the different ways of maintaining laws in different territorial contexts20. Even earlier, in the Spirit of laws Montesquieu had argued that laws should be created to respect a range of climates, territories, economic activity, namely, a range of variables that made certain laws suitable for one people but not for another. These considerations were not foreign to Kant. So, the a priori justification of a civil state and the moral requirement of specific international legislation does not exclude considerations regarding said empirical variables, which might determine the success or failure of a law to protect the mine and thine. Such empirical and prudential considerations underlie Kant’s statement that “nature wills it otherwise. It makes use of two means to prevent peoples from intermingling and to separate them: differences

17

See McCarthy (2002), Kleingeld (2004; 2012), Hruschka/Bird (2008). Regarding the 18 century concept of universal monarchy Bosbach (1998) states: “the idea of Universal Monarchy was fixed in European international politics. It was used for discussing the policy of any state that at the time tended to be in a position of preponderance.” Bosbach (1998, 84) So the concept of universal monarchy was linked to the idea of a worldwide hegemon or leviathan that rules over other states. 18 Kant, ZeF, AA 08: 367. 19 Kant, MS, AA 06: 350. 20 Cf. Rousseau (1997), 75f/B2/Ch10). th

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of language and of religion.”21 Languages and religions are the maximal expression of the variety of cultures, which, in turn, are fashioned in specific contexts and territories. In order to have an enduring universal monarchy, laws must be created and applied according to an absolute despotic procedure, which disregards and must try to annihilate the variety of cultures. The violence must be brutal in order to enforce laws that are inappropriate to the culture of that people. The second issue related to the soulless despotism of a universal monarchy deals with the continuous emergence of internal conflicts or rebellions, which would eventually lead to anarchy22. There was little doubt that Kant had the history of the Roman empire in mind. Issues of imperial succession often led to conflicts and civil war. Thus, pragmatically thinking, the approach to building a world republic by way of a universal monarchy and the pax romana is determined to fail. There is an inherent contradiction between the adequate measures for achieving the goal of perpetual peace. The third issue addresses a pernicious aspect of despotism regarding the very right that the civil condition is supposed to protect, namely, the right to external freedom. For world empire to conquer all countries it must subdue its adversaries in such a brutal manner that all freedom of the public use of reason would be extinguished. This would also mean the death of reason in its theoretical and practical use23. The universal monarchy is “a state constitution in which all freedom would necessarily expire, and, together with it, virtue, taste and science (which follow upon freedom)”24. In this way, human beings would be thrown “into one class with other living machines, which need only be aware that they are not free in order to become, in their own judgment, the most miserable of all beings in the world”25. According to Kant, a universal monarchy would contradict both principles of reason (freedom, equality and independence of human beings), as well as the practical reasoning that mediates the metaphysical principles of right to the anthropological 21

Kant, ZeF, AA 08: 367. See also: “Yet after this monster (in which the laws gradually lose their force) has swallowed up all its neighbors, it ultimately disintegrates all by itself. It divides through rebellion and factionalism into many smaller states which, instead of striving after a union of states (a republic of free federated peoples), in turn begin the same game all over again, so that war (that scourge of the human race) will not cease. (Kant, RGV, AA 06: 34n.) 23 Cf. “The freedom to think is opposed first of all to civil compulsion. Of course, it is said that the freedom to speak or to write could be taken from us by a superior power, but the freedom to think cannot be. Yet how much and how correctly would we think if we did not think as it were in community with others to whom we communicate our thoughts, and who communicate theirs with us! Thus one can very well say that this external power which wrenches away people’s freedom publicly to communicate their thoughts also takes from them the freedom to think – that single gem remaining to us in the midst of all the burdens of civil life, through which alone we can devise means of overcoming all the evils of our condition”. (Kant, WDO, AA 08: 144) 24 Kant, RGV, AA 06: 34n. 25 Kant, ZeF, AA 08: 378. 22

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features shaping the human being. Therefore, for Kant, the condition of war in the state of nature is “not so incurably evil as the grave of universal despotism”26.

2. War as means The creation of a world state also stumbles upon the question of means, the possibility to consider coercion, which is nothing but actual or potential war, as the principle mechanism by which the world republic may be built. Kant recognizes a potential contribution that war might make toward the progress of culture and juridical relations27. However, it is important to stress that those points about war have been made, on the one hand, in the context of the philosophy of history in order to build a historical narrative with an a priori point of view that find some positive place for war, and, on the other hand, as the only actual way that a state may claim its right while still in the state of nature. The rights to, in and after war are understood and justified in MS as the only juridical procedure that states have for solving conflicts concerning their understanding of rights28. Those rights regarding war are only provisional, insofar as states are still in the state of nature. Therefore, everything decided by war always remains problematic and provisional. Following Rousseau29, war can never really ground any objective right, and it is a cynical fallacy that “it is the prerogative nature has given the stronger over the weaker, that the latter should obey him”30. From the strict point of view of practical reason, war is absolutely rejected: “This nonrightful condition is a condition of war (of the right of the stronger), […] this condition is in itself still wrong in the highest degree, and states neighboring upon one another are under obligation to leave it”31. Therefore, “morally practical reason pronounces in us its irresistible veto: there is to be no war, neither war between you and me in the state of nature nor war between us as states, which, although they are internally in a lawful condition, are still externally (in relation to one another) in a lawless condition; for war is not the way in which everyone should seek his rights”32. The

26

Kant, RGV, AA 06: 34n. Cf. “Its preparatory arrangement consists in the following: that it 1) has taken care that people should be able to live in all regions of the earth; 2) by war it has driven them everywhere, even into the most inhospitable regions, in order to populate these; 3) by war it has compelled them to enter into more or less lawful relations.” (Kant, ZeF, AA 08: 363) In the same sense, see also: Kant IaG, AA 08: 21 f.; 24 f./KU, AA 05: 432 f./TP, AA 08: 310 f. 28 Cf. MS, AA 06: 344 – 349. 29 Cf. Rousseau (1997), 48 B1/Ch4). 30 Kant, ZeF, AA 08: 355. 31 Kant, MS, AA 06: 344. 32 Kant, MS, AA 06: 354. 27

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pragmatic point of view also refutes war, since “war is bad in that it makes more evil people than it takes away”33. The desire for power and the love of savage freedom are the main causes of war. In this case the state lays its majesty “in its not being subject to any external lawful coercion at all, and the splendor of its chief consists in his being able, without even having to put himself in danger, to command many thousands to sacrifice themselves for a matter that is of no concern to them”34. The unreasonable attachment to savage freedom may only “find perpetual peace in the vast grave that covers all the horrors of violence along with their authors”35. Therefore, peace reached by a universal monarchy is the dystopic realization of a “satirical inscription on a certain Dutch innkeeper’s signboard picturing a graveyard”36. Kant rejects the world state grounded by way of pax romana and a peace achieved through war. A genuine peace is not merely an interruption of hostilities while revenge is prepared or expected. The peace that arises from war suffers from the same deficiency that right grounded in unilateral violence does; it is morally void.

3. Disanalogy between the formation of states and world republic A disanalogy exists between the role of war and coercion in the formation of states and that of the world state, as framed in these words: “It is futile to inquire into the historical documentation [Geschichtsurkunde] of the mechanism of government, that is, one cannot reach back to the time at which civil society began (for savages draw up no record of their submission to law; besides, we can already gather from the nature of uncivilized human beings that they were originally subjected to it by force). But it is culpable to undertake this inquiry with a view to possibly changing by force the constitution that now exists”37.

Kant acknowledges that violence is the origin of states. Nevertheless, he emphasizes that it is punishable. In other words, it is against reason to question states’ legitimacy on basis of their historical origin. A distinction is at work here between quid facti and quid juris. The historical advent of a state does not determine its legitimacy38. Therefore, even in despotic states the law shall be obeyed, and any attempt at revolution is illegitimate39. Kant’s argument follows the assumption that even unjust 33

Kant, ZeF, AA 08: 365/cf. RGV, AA 06: 34n. Kant, ZeF, AA 08: 354. 35 Kant, ZeF, AA 08: 357. 36 Kant, ZeF, AA 08: 343. 37 Kant, MS, AA 06: 339 f. 38 Cf. Kant MS, AA 06: 318 ff.; 371 f./ZeF, AA 08: 371. 39 In this sense: “These are permissive laws of reason that allow a situation of public right afflicted with injustice to continue until everything has either of itself become ripe for a 34

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constitutions are better than none, because, once one exists, there is margin to fullfil the duty to reformulate it toward a republican one. “The different forms of states are only the letter (littera) of the original legislation in the civil state, and they may therefore remain as long as they are taken, by old and long-standing custom (and so only subjectively), to belong necessarily to the machinery of the constitution. But the spirit of the original contract (anima pacti originarii) involves an obligation on the part of the constituting authority to make the kind of government suited to the idea of the original contract. Accordingly, even if this cannot be done all at once, it is under obligation to change the kind of government gradually and continually so that it harmonizes in its effect with the only constitution that accords with right, that of a pure republic, in such a way that the old (empirical) statutory forms, which served merely to bring about the submission of the people, are replaced by the original (rational) form, the only form which makes freedom the principle and indeed the condition for any exercise of coercion, as is required by a rightful constitution of a state in the strict sense of the word”40.

Though not explicitly mentioned, a permissive law of practical reason is at work here. It gives legitimacy to unjust laws and unjust institutions, namely, laws and institutions whose “letter” does not accord with the “spirit” of the original contract. The counterpart of this permission is the ruler’s duty to make gradual reforms to reduce the distance between the spirit and the letter. However, what reasons led Kant to accept that states might begin through violence and in a despotic fashion, while the same permission is not afforded regarding a world civil state? Why would reason prohibit the emergence of a world state, firstly as a world monarchy, with the expectation of gradual reform? The following passage calls attention to this distinction: “however, what holds in accordance with natural right for human beings in a lawless condition, ‘they ought to leave this condition’, cannot hold for states in accordance with the right of nations (since, as states, they already have a rightful constitution internally and hence have outgrown the constraint of others to bring them under a more extended law-governed constitution in accordance with their concepts of right)”41.

complete over-throw or has been made almost ripe by peaceful means; for some rightful constitution or other, even if it is only to a small degree in conformity with right, is better than none at all, which latter fate (anarchy) a premature reform would meet with.” (Kant, ZeF, AA 08: 373n.) And also: “But it is culpable to undertake this inquiry with a view to possibly changing by force the constitution that now exists. For this transformation would have to take place by the people acting as a mob, not by legislation; but insurrection in a constitution that already exists overthrows all civil rightful relations and therefore all right, that is, it is not change in the civil constitution but dissolution of it. The transition to a better constitution is not then a metamorphosis but a palingenesis, which requires a new social contract on which the previous one (now annulled) has no effect.” (Kant, MS, AA 06: 340) Here it is important to call attention to the distinction between despotic and barbarous states. In the former there is still law, while in the later there is only force. 40 Kant, MS, AA 06: 340. 41 Kant, ZeF, AA 08: 355 f.

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Several questions arise. The first concerns the absence of a duty to leave the state of nature at the level of the law of people. In this respect, I find Kleingeld’s interpretation particularly compelling, namely, that the alleged contradiction concerns only the context of discussion42. So, at the level of international law, we cannot conceive of a duty to leave the system of several states, because it contradicts the assumption of the idea of international law. The second issue deals with why states might ‘have outgrown the constraint of others to bring them under a more extended law-governed constitution’. In other words, they are not under any mutual coercion to leave the state of nature. Kant points out that this is because they already have a rightful internal constitution. Yet, consensus is lacking both about the interpretation and the theoretical weight of this argument. Geismann argues that Kant’s rejection is due to the risk of losing an already stable yet imperfect juridical constitution43. Since war is always an uncertain business, it puts at risk the existing juridical stability achieved by some states and the threat is even greater when the just states are militarily weaker. Kleingeld counter-argues that this reasoning would be consequentialist and alien to the Kantian model44. Moreover, this line of thought would give moral legitimacy for a powerful group of republics to declare war against all other despotic ones so as to impose morally better constitutions. Kant, nonetheless, never defended this position. Kleingeld and Caranti argue that Kant’s rejection arises from the issue of paternalism among states45. This argument appears unsound, however, because Kant defines paternalism as a despotic law or constitution that imposes a concept of happiness on the people46. The paternalist critique loses support in the event that a war is waged not in the search for happiness or a good life, but on the grounds of the right to freedom. One must keep in mind the distinction between ethical and juridical freedom. So, on the basis of external freedom and without falling on the issue of paternalism, it would be legitimate for a strong group of republics to declare war in order to build a world republic composed of a federation of republics. Kant rejects this path, but not on the basis of paternalism. Another interpretation posits that, in the event that a world state were to emerge through mutual coercion, it would contradict the right of peoples’ self-determination47. There is little doubt that Kant defends the right of self-determination. However, what is at issue here is its context and meaning. This right ensures that states lack the legitimacy to intervene in others’ constitutions to their own advantage, while they may legitimately do so to leave the state of nature. After all, the same right was granted to individuals in the state of nature, and it did not deny the legiti42

An excellent analysis of this passage can be found in Kleingeld (2012), p. 59 ff. Geismann (1983), p. 367; 1996. 44 Kleingeld (2004), p. 309. 45 Cf. Kleingeld (2004) p. 309 and Caranti (2017), pp. 132, 148. 46 Cf. Kant, TP, AA 08: 291. 47 Cf. Maus (2015b), Flikschuh (2010), and Kleingled (2014), p. 54 ff.

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macy to force others to enter into a civil state. In this sense, Byrd and Hruschka are correct in pointing out that the right of self-determination does not serve as a ground for rejecting coercion in order to create a world republic, “since logically an internal constitution cannot unilaterally govern the state’s external relations to other states”48. Moreover, as mentioned above, it is exactly this right of self-determination that legitimizes that states might wage preventive war when they are under threat of increasing power in a neighbor and rival state. The right to self-determination is not of great value when states are constantly under threat and their resources drained by constant preparation for war49. One final argument, the right of savage self-determination has no definitive and intrinsic value in the state of nature. I propose to understand Kant’s refusal to accept mutual coercion in order to create a world republic as due to his unequivocable intention to avoid perpetual despotism and the eternal loop of violence typical of abderitism50. The existence of despotism, even in a limited number of multiple and concurrent states, still opens the possibility for a gradual process for constitutional reform, subject to outside pressure. So, state despotism might always be limited and even destroyed by forces of other states, since they are always in some kind of mutual opposition. In the event of a total lack of external pressure, the unsociability that keeps human development alive might lose its force. For example, a state that continuously persecutes parts of its population or prevents the freedom of the public use of reason (academic and scientific freedom) ends up weaker than other states. If philosophers cannot publish due to domestic censorship, they might always be granted asylum or publication elsewhere. This possibility would be eliminated or profoundly diminished in the case of a world monarchy. Moreover, said world monarchy is fated to fall into civil war after a certain time 48 Byrd/Hruschka (2010), 195 f. I disagree with them, however, when they sustain that in the MS Kant defended the right to use coercion to create the federation of states. They based their reading on following passages: „Bei jenem ursprünglichen Rechte zum Kriege freier Staaten gegen einander im Naturzustande (um etwa einen dem rechtlichen sich annähernden Zustand zu stiften) erhebt sich zuerst die Frage.“ (MS, AA 06: 344, 25 – 27); „(…) wo ein Staat, als eine moralische Person, gegen einen anderen im Zustande der natürlichen Freiheit, folglich auch dem des beständigen Krieges betrachtet, theils das Recht zum Kriege, theils das im Kriege, theils das, einander zu nöthigen, aus diesem Kriegszustande herauszugehen, mithin eine den beharrlichen Frieden gründende Verfassung, d. i. das Recht nach dem Kriege, zur Aufgabe macht, (…)“ (MS, AA 06: 343, 20 – 25). I think that their interpretation is incorrect, because in both cases the context suggests another view. In the first passage, the issue of war regarding the exit of the state of nature among nations is formulated as a question and not as a statement. So, Kant’s issue is states’ use of subjects in war and not the reciprocal legitimacy of coercion among states in order to create a federation of states and then a world republic (this critique is also expressed by Mikalsen (2011), 306 ff.). In the second passage, the formulation “einender zu nöthingen” might be interpreted not as the right to coerce each other, but only as a moral demand, in the same sense that subjects might demand reform from the head of state. Finally, nowhere, either in the ZeF or in the MS, does Kant expressly state the right for states to coerce each other in order to create a federation. On the contrary, he always insists there should be no coercion. The process must begin as a free federation of states. 49 Cf. Kant, IaG AA 08: 28. 50 Cf. Kant, SF, AA 07: 82.

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which would sentence human beings to a continual loop of violence, which is characteristic of abderitism. Thus, there are pragmatic and teleological reasons for states to reform themselves and to reject the right of mutual coercion. Therefore, if a permissive law allows states to arise from violence and to stay provisory without meeting all republican requirements, on the other hand, no such permission exists regarding the creation of a world state. The difference implies metaphysical considerations, which, in Kant’s terminology, means the incorporation of anthropological, historical and political considerations into a unified and organized perspective to create a system of freedom according to the categorical imperative of right. In other words, Kant might say that practical reason lends no such permission at the level of international law, because, due to teleological and prudential reasoning, the world republic would become impossible. This metaphysical perspective functions both at the individual and state levels. Although the context differs, the type of argument remains the same, a teleological and prudential reasoning that permits coercion among individuals, but rules it out as a mechanism for states to leave the state of nature. At a strictly normative level, reason requires both individuals and states to leave the state of nature and create a republican civil state. However, in circumventing this strict normative level and entering what Kant calls the metaphysical one, then a new kind of consideration becomes relevant, one which can be considered teleological and pragmatic51. More light can now be shed on the passage where Kant evaluates differences among languages and religions, which “bring with them the propensity to mutual hatred and pretexts for war but yet, with increasing culture and the gradual approach of human beings to greater agreement in principles, leads to understanding in a peace that is produced and secured, not as in such a despotism (in the graveyard of freedom), by means of a weakening of all forces, but by means of their equilibrium in liveliest competition”52.

States come about through violence and without fully meeting the criteria of omnilateral will. This emergence is shaped by different geographical and historical features, culminating in a range of languages and religions. For many centuries, said differences led to hate and war, but they also opened the door to enlightenment. They facilitated the rise of culture and the gradual agreement in principles, without weakening productive forces and while avoiding the lugubrious peace of graveyards. So, based on a teleological and pragmatic reasoning, Kant differentiates formal requirements of juridical reason that have to be meet in the state and in the global level. At the state level, violence and despotism might be counterbalanced by the unsociability between states, but this cannot be expected at the level of a world state. Therefore, the creation of a world republic requires the maturity of free and conscious 51 Regarding the meaning and the systematical legitimation of this pragmatic and prudential reasoning, see Klein (2021). 52 Kant, ZeF, AA 08: 367.

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decisions of different peoples that understand the practical necessity of becoming one. This juridical and moral requirement must not erase cultural differences, since freedom’s graveyard must be avoided. So, that which cannot be expected from individuals living in savage freedom in the state of nature is now required from states. In other words, juridical and political maturity was beyond the capacity of individuals before the development of civilization and the emergence of states, but it must now be achieved so that states might advance toward their next moral step. At the global level, practical reason does not allow for a gap between the quid facti and the quid juris, otherwise, we could never achieve a lively perpetual peace, but only a cold and mournful freedom53 that would continuously trap the human species in loops of violence54. Finally, it is important to stress that, conceptually speaking, a world republic is a world state, but not all possible world states can be considered republics. The concept of republic implies stronger normative requirements. In addition to the formal criteria of a representative government and separation of powers, “republic” also implies a profound commitment to the values of freedom, equality and independence. Moreover, citizens must also be morally committed to enlightened patriotism, understood as fidelity to republican values55. In this sense, if we make an analogy with the people of daemons in Perpetual Peace.56 Even daemons, in case they have understanding, might be able to set up a state but not a republic. In the same manner, different peoples of daemons, assuming they have and use their understanding, might manage to put together a federation of nations. However, it is only moral peoples (who have learned how to live by republican institutions and respecting external freedom) who are able to form a world republic.

53

Cf. Kant, ZeF, AA 08: 343. In order to illustrate such an impasse, I think the genial formulation of Madison in the Federalist Papers might help: “It could never be more truly said than of the first remedy that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be a less folly to abolish liberty, which is essential to political life, because it nourishes faction than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency” (Madison (1987), p. 123). 54 This reasoning can be found in the following: “One need only to look at China, which on account of its situation has to fear perhaps only an unforeseen attack, but not a mighty enemy, and in which therefore all trace of freedom has been eradicated. – Thus at the stage of culture where humankind still stands, war is an indispensable means of bringing culture still further; and only after a (God knows when) completed culture, would an everlasting peace be salutary, and thereby alone be possible for us” (Kant, MAM, AA 08: 121). 55 These topics are further developed in Klein (2014) and Klein (2016). By pointing out the importance of individual moral enlightenment as a necessary step toward juridical cosmopolitanism does not mean that Kant fails to give due attention to the role of institutions. In this sense, I disagree with Perreau-Saussine (2010, 68), who ends up linking political moral enlightenment with a theological view of the ethical community. 56 Cf. Kant, ZeF, AA 08: 366.

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III. Final remarks The transition from the free federation of nations to a world republic is a juridical duty which does not grant recourse to reciprocal coercion. However, states shall renounce their sovereignty in favor of the world republic. This process of enlightenment regarding the concept of right can only come about following a prolonged period of maturation and cultural development. Kant never presented the constitution of the world republic, but we may outline some of its principles discerned through extrapolation. In the first place, since the world republic is a world state, it has sovereignty to decide what is within its jurisdiction and what will be left to federated members. In contrast to Höffe57, who proposes an ultra-minimalist global state whose sovereignty would be limited to that conferred by member-states, Kant’s world republic would have the authority to regulate anything that might illegitimately interfere with the juridical freedom of individuals and member-states. It is the institutions of the world republic that decide what is encompassed within its sphere of action. Therefore, the world republic would not deal merely with military conflicts between federated members (as defended by Höffe), but might regulate anything deemed to interfere with the equality of freedom. For example, excessive emissions of carbon dioxide by one member-state illegitimately affect the sphere of freedom of others. The creation of tax heavens disrupts the system of equal freedom by enabling corruption in other states. Effective world organizations are needed to deal with pandemics, while even the world-wide control of multinationals could be used to avoid exploitation by setting a global minimal wage. All those concerns are under the jurisdiction of the world republic that should have authority to regulate them. Unlike Habermas58, who defends a constitution without a state, and Pogge59, who advocates a federation of nations with multiple levels of shared sovereignty, Kant’s final model is a world republic that shall begin and be maintained as a state. According to Kant, this is a requirement of the concept of strict right and a system of equal freedom. Without global legislative, judiciary, and executive institutions i. e., without the political and juridical structure of a state, the different peoples on earth will continuously remain in the state of nature. International law will continue to be a problematic and uncertain right, a right in fieri. Despite this difference, Kant’s proposal of a free federation of states is similar to Habermas’s constitution without a state. For Kant, however, this free federation is not merely a duty but also a necessary intermediate step that functions as a period of learning and maturation along the journey toward a world republic. This is important, because it points in the direction to which all juridical and political efforts of the free federation of states must proceed, setting up the federation’s efforts and responsibilities. When states have reached maturity, they must 57

Höffe (2006), pp. 193 – 203. Habermas (2016), pp. 133 ff. 59 Pogge (2009).

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then take their juridical relationships to another level and set up a world republic. Remaining at the halfway point is not an option; each generation must progress a step further, otherwise, stagnation ensues. Stagnation, in turn, runs the great risk of additional setbacks, since it is nothing other than mere mechanical reproduction, which is particularly dangerous for freedom. We might argue that this mechanical reproduction is, in effect, a setback, since of people fail to comprehend the moral necessity for continual reform, then they have already entered a descent into decadence. Even though the world republic would be a state, and all right would be public and positive, this does not mean that it would be able to intervene in all speres of the juridical freedom of federated states. The prerogative, however, would be that of the world republic, otherwise disputes of authority would create constant conflict. Kant’s concept of law demands a model of unitary sovereignty and refutes the multilayered or shared sovereignty model typical of medieval and pre-modern philosophy. Habermas’s and Höffe’s models suffer from the issue that, in the end, in the event of jurisdictional conflicts, there is no superior authority to solve the conflict and enforce the decision. The only way to address the issue of jurisdictional conflicts and, at the same time, to preserve the differences and the freedoms of federated states is by means of a world republic that, on the one hand, is shaped by a unitary model of sovereignty and, on the other, behaves as a minimalistic state thanks to the practice of juridical and political self-restraint. This world republic, by way of its authority and decision-making would delegate part of its authority to regional or inferior authorities. So, Kant’s model of unitary sovereignty is open to a plurality of institutions that might determine specific spheres of freedom. The difference is that Kant’s model justifies authority as ‘flowing’ from the top down, while that of Höffe takes the bottom-up approach. According to the latter model, if a lower level authority decides to withdraw its agreement with the next higher level, we would fall back into the state of nature. While in the former model, in case of a conflict, the higher level may always reclaim the authority to settle the dispute. Therefore, Kant’s world republic is a world state, and all peoples of the earth will become a single people, since they will have the same basic rights and will be under the same laws. This does not imply homogeneous cultures, languages, religions or ways of life, since the concept of “people” is only a juridical one. The world republic would be a minimalist state. This limitation would not result from member states having yielded up a small portion of their sovereignty. Instead, all federated states would have achieved such levels of political and juridical maturity that they would understand and accept the moral requirement to completely forego their savage freedom in order to enjoy the civil freedom of a world republic, a republic made up of republics. Another reason would be the natural tendency of this world republic to exercise juridical and political self-restraint. The state would deal solely with the equal spheres of juridical freedom, both for states and for individuals60. 60 The system of equal spheres of freedom is to be understood always as being compatible with freedom of choice.

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References Axinn, Sidney: Kant on World Government, in: Gerhard Funk/Thomas Seebohm (eds.), Proceedings of the Sixth International Kant Congress, Washington DC 1989, pp. 245 – 249. Bosbach, Franz: The European debate on Universal Monarchy, in: D. Armitage (ed.), Theories of Empire, 1450 – 1800, Ashgate 1998, 81 – 98. Byrd, Sharon/Hruschka, Joachim: From the state of nature to the juridical state of states, in: Law and Philosophy, 27, 6, 2008, pp. 599 – 641. Byrd, Sharo/Hruschka, Joachim: Kant’s Doctrine of Right: A Commentary, Cambridge 2010. Caranti, Luigi: Kant’s Political Legacy. Human Rights, Peace, Progress, Cardiff 2017. Carson, Thomas: Perpetual peace: What Kant should have said, in: Social Theory and Practice, 14, 2, 1988, 173 – 214. Cavallar, Georg: Kant and the Theory and Practice of International Right, Cardiff 1999, pp. 113 – 32. Cavallar, Georg: Cosmopolitanisms in Kant’s philosophy, in: Ethics & Global Politics, 5, 2, 2012, pp. 95 – 118. Dodson, Kevin: Kant’s Perpetual Peace: Universal Civil Society or League of States?, in: Southwest Philosophical Studies, 15, 1993, 1 – 9. Fichte, Gottlieb Johann: Zum ewigen Frieden- Ein philosophisher Entwurf von Immanuel Kant (1796), in: Richard Saage/Zwi Batscha (Hrsg.), Fridensutopien Kant, Fichte, Schlegel, Görrers, Frankfurt am Main 1979, pp. 83 – 92. Flikschuh, Katrin: Kant’s Sovereignty Dilemma, in: Journal of Political Philosophy, 18, 4, 2010, pp. 469 – 93. Geismann, Georg: Kants Rechtslehre vom Weltfrieden, in: Zeitschrift fu¨ r philosophische Forschung, 37, 3, 1983, pp. 363 – 88. Gerhardt, Volker: Immanuel Kants Entwurf ,Zum ewigen Frieden‘: eine Theorie der Politik, Darmstadt 1995. Habermas, Jürgen: Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Year’s Hindsight, in: James Bohman/Mathias Lutz-Bachmann (Org.), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal, Massachusetts 1997, pp. 113 – 153. Habermas, Jürgen: Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?, in: Jürgen Habermas, Die gespaltene Westen, Frankfurt am Main 2004, pp. 68 – 84. Höffe, Otfried: Kant’s Cosmopolitan Theory of Law and Peace, Cambridge 2006, pp. 189 – 203. Kant, Immanuel: Gesammelte Schriften. hrsg: Bd. 1 – 22: Preussische Akademie der Wissenschaften, Bd. 23: Deutsche Akademie der Wissenschaften zu Berlin, ab Bd. 24: Akademie der Wissenschaften zu go¨ ttingen, Berlin: [s. n.], 1900. Kersting, Wolfgang: Weltfriedensordnung und globale Verteilingsgerechtigkeit. Kants Konzeption eines vollständigen Rechtsfriedens und die gegenwärtige politische Philosophie der internationalen Beziehungen, in: Reinhard Merkel/Roland Wittman (Hrsg.), Zum ewigen Frieden: Grundlagen, Aktualität und Ausichten einer Ideen von Immanuel Kant, Frankfurt am Main 1996, 172 – 212.

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Klein, Joel T.: A relação entre ética e direito na filosofia política de Kant, in: Manuscrito (UNICAMP), 37, 2014, pp. 161 – 210. Klein, Joel T.: Kant and Public Education for Enhancing Moral Virtue: The Necessary Conditions for Ensuring Enlightened Patriotism, in: Andrea Faggion/Nuria Sanchez Madrid/ Alessandro Pinzani (Org.), Kant and Social Policies. 1ed.Cham/Switzerland 2016, pp. 149 – 174. Klein, Joel T.: On Serpents and Doves: The systematical relationship between prudence and morality in Kant’s political philosophy, in: Kant-Studien (2021). Kleingeld, Pauline: Approaching Perpetual Peace: Kant’s defense of a league of states and his ideal of a world federation, in: Journal of European Philosophy, 12, 2004, 304 – 25. Kleingeld, Pauline: Kant and Cosmopolitanism: The Philosophical Ideal of World Citizenship, Cambridge 2012. Mccarthy, Thomas: On Reconciling Cosmopolitan Unity and National Diversity, in: C. P. Cronin/Pablo DeGreiff (eds.), Global Justice and Transnational Transitional Politics, Cambridge 2002. Madison, James: Number X: the same subject continued, in: Alexander Hamilton/James Madison/John Jay, The federalis papers, London 1987. Maus, Ingeborg: Kants Gründe gegen einen Weltstaat, in: Ingeborg Maus, Demokratie und Frieden: Perspektiven globaler Organisation, Frankfurt am Main 2015, 62 – 80. Lutz-Bachmann, Matthias: Kant’s idea of peace and the philosophical conception of a world republic, in: James Bohman/Lutz-Bachmann (eds.), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal, Cambridge, MA 1997, pp. 59 – 78. Maus, Ingeborg: Kants Gründe gegen einen Weltstaat, in: Ingeborg Maus, Demokratie und Frieden, Perspektiven globaler Organisation, Suhrkamp, 2015, 62 – 80. Mikalsen, K. K.: In defense of Kant’s league of states, in: Law and Philosophy, 30, 2011, pp. 291 – 317. Perreau-Saussine, Amanda: Immanuel Kant on international law, in: Amanda Perreau-Saussine/Johne Tasioulas (eds.), The philosophy of international law, Oxford 2010, pp. 53 – 78. Pogge, Thomas: Kant’s Vision of a Just World Order, in: Thomas E. Hill (ed.), The Blackwell Guide to Kant’s Ethics, Oxford 2009, pp. 196 – 208. Rawls, John: The law of peoples, Cambridge 1999. Ripstein, Arthur: Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge 2009. Rostboll, Christian F.: Freedom in the External Relation of All Human Beings: On Kant’s Cosmopolitanism, in: Kantian Review, 25, 2, 2020, 243 – 265. Rousseau, Jean-Jacques: The social contract, in: Jean-Jacques Rousseau, The social contract and other later political writings, Cambridge 1997.

Kant on cosmopolitan law and the possibility of refugee rights By Maria Borges The idea of international law presupposes a theory that considers a possible lawful relation between States. According to Kant, it is a necessary condition for the law of nations that States should leave a state of nature. This is what he explains to us in paragraph 61 of The Doctrine of Right: “Since a state of nature among nations, like a state of nature among individual human 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”1.

In order to leave their state of nature and enter into a legal condition, States should constitute something beyond and above them. However, would a State of States be possible? Kant talks about a association of States: “Only in a universal association of states (analogous to that by which a peopla becomes a state) can rights come to hold conclusively and a true condition of peace come about. But if such a state made up of nations were to extend too far over vast regions, governing it and so too protecting each of its members would finally have to become impossible”2.

In this quote from The Doctrine of Law, Kant stresses the impossibility of having a State of State due to its immensity, since it should extend throughout the earth and protect all individuals in the world. However, in addition to the issue of extension, we would have an internal contradiction to the very conception of a State of States, which is emphasized in the text Toward Perpetual Peace: “That would be a contradiction, inasmuch as every State involves a relation of a superior (legislating) to an inferior (obeying, namely the people); but a number of nations within one State would constitute only one nation, and this contradicts the presupposition (since here we have to consider the right of nations in relation too one another insofar as they comprise different states and are not be fused into a single State)”3.

Kant points out that the contradiction lies in the fact that the model he adopts for a particular State presupposes the relationship between an upper and a lower power. Thinking of a State of States would lead to the conception of a State that should 1

Kant, RL, AA 06: 350. Kant, RL, AA 06: 350. 3 Kant, ZeF, AA 08: 354. 2

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obey another State, which could not be accepted within Kant’s political theory. Although objections when the difficulty of governing a long area must be taken into account, the intrinsic contradiction in terms of a State subordinated to another State seems to be the determining reason for the denial of this possibility. Ripstein points out that one of the difficulties in thinking about a single world government is that relations between people differ from relations between states. One of the problems in generalizing this relationship is that states cannot be entitled to something outside their borders; so “an association to guarantee peace requires neither a sovereign legislature not the power of enforcement”4. In Theory and Practice (1793), Kant offers the possibility of a single world state, a cosmopolitan Constitution (Welbürgerliche Verfassung). In Perpetual Peace, this is called “universal monarchy”5, having the meaning of a state with a single source of power. This idea is presented as a possibility analogous to that of peoples entering a civil constitution to avoid war. However, Kant warns us of the danger of such a universal state bringing with it the “most terrible despotism”6, making the condition of universal peace more damaging to freedom than war itself. Since both the ideal of a single State and that of a State of States are unattainable, we can only find an imperfect surrogate. “In accordance with reason there is only one way that states in accordance with one another can leave the lawless condition, which involves nothing but war; it is that, like individual human beings, they give up their savage (lawless) freedom, accommodate themselves to public coercive laws, and so form an (always growing) state of nations (civitas gentium) that would finally encompass all the nations of the earth. But, in accordance with their idea of the right of nations, they do not at all want this, thus rejecting in hypothesi what is correct in thesi; so (if all is not to be lost) in place of the positive idea of world republic only the negative surrogate of a league that averts war, endures”7.

This league is what Kant calls a league of nations, which could be situated between a mere peace pact and a State of States (civitas gentium). “So there must be a league of a special kind, which can be called a pacific league (foedus pacificum), and what distinguish it from a peace pact (pactum pacis) is that the latter seeks to end only one war, while the former seeks to end all war forever”8.

Kant does not admit a State of States, however the relationship between them in a pacific league is not of a contingent agreement. The idea of a league of nations would bring with it a conception of international law that goes beyond the limits of national states, even if it were not a State of State.

4

Ripstein (2009), p. 29. Kant, ZeF, AA 08: 367. 6 Kant, TP, AA 08: 312. 7 Kant, ZeF, 08: 357. 8 Kant, ZeF, 08: 356.

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Sharon Byrd and Joachim Hruschka offer us a good synthesis of the models used for a right of nations. In Perpetual Peace, Kant would use three models: the universal monarchy (Universalmonarchie), the State of Nations (civitas gentium/Völkerstaat) and a League of Nations (foedus pacificum/Völkerbund). “The universal monarchy is one single state into which the individual states dissolve. Every individual person is then a “world citizen“ and no longer a citizen of his or her original state. In the state of nations, in contrast to the league of nations, however, the individual states (and not only the individual persons) are subject to public coercive laws. In the league of nations, however, the States are not subjects to public coercive laws”9.

In The Doctrine of Law, Kant no longer resorts to a universal monarchy and maintains the idea of a State of nations and a league of nations. He also calls the first the universal union of States (allgemeiner Staatenverein). From the point of view of reason, this State would be desirable, because of the possibility of having a public international law there, which could subject nations to avoid war and achieve lasting peace. However, due to the difficulties pointed out, only a league of nations will be possible, which will have a duty to develop the political principles towards peace, as a regulatory ideal to be pursued. Kant also calls it the Permanent Congress of States and gives as an example the Hague Assembly of General States. Participation in the permanent congress of nations is always voluntary, since the nations present there are not under an international coercive law.

I. Cosmopolitan right International law refers to the legal relationship of one State with another State, in a federation- or League- of the nations. Kant advances in relation to a right that relates the State to another State, proposing a cosmopolitan right that concerns to the relationship of a State with people who are not citizens of that State. What kind of right is this? In the third article of Toward Perpetual Peace, Kant states that the cosmopolitan right must be limited to conditions of universal hospitality and “hospitality means here the right of a foreigner not to be treated with hostility because he has arrived in the land of another”10. The foreigner has the right not to be treated with hostility because he has reached another State. This right, however, does not extend to a right to be a guest of that State, but only to visit: “What he can claim is not the right to be a guest (for this a special beneficient pact would be required, making him a member of the household for a certain time), but the right to visit; this

9

Byrd/Hruschka (2010), p. 200. Kant, ZeF, AA 08: 357.

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right, to present oneself for society, belongs to all human beings by virtue of the right of possession in common of the earth’s surface”11.

The right to hospitality, although limited to the right of visit, will be essential for remote parts of the world to establish “legal and public links”, which will lead to the realization of a cosmopolitan constitution. The impossibility of a world republic seems to indicate a limitation to the very cosmopolitan law. Kant, however, uses this term in Perpetual Peace, to refer to a complement to the law of nations that, as Kant himself states, is an unwritten complement. “The idea of a cosmopolitan right is no fantastic and exaggerated way of representing right; it is, instead, a supplement to the unwritten code of the right of a state and the right of nations necessary for the sake of any public rights of human beings and so for perpetual peace; only under this condition can we flatter ourselves that we are constantly approaching perpetual peace”12.

Byrd and Hruschka note that the idea of a cosmopolitan right in Kant is misleading13. The term cosmopolitan right is the translation of the ius cosmopoliticum or Weltbürgerrecht, which is the law of the citizen of the world (Weltbürger). Since Kant does not accept a unified world State, there is no legal sense in thinking of a citizen of the world, because he will be a citizen of that kind of State. Despite this legal inadequacy, in Toward Perpetual Peace, Kant actually presents cosmopolitan law as a right of visit of weltbürger, a right of the citizen of the world not to be treated with animosity when he arrives in a State other than his State of origin. According to Byrd and Hruschka, in this interpretation, Kant has an influence of Grotius and Pufendorf in the acceptance of a right to non-harmful use. A possible example of right to non-harmful use is to drink from a river belonging to others. Another influence of the Kantian cosmopolitan law is the jurist Achenwall, for whom entering a foreign territory, even with the intention of non-harmful use, would be impossible without the consent of the people of that territory. For the authors, “the Kantian conception of the right of visitation of Perpetual Peace departs from the ideas of Achenwall and returns to the notion of a right to non-harmful use of Grotius and Pufendorf”14. Thus, cosmopolitan law is limited only to universal hospitality. In The Doctrine of Right, Kant does not abandon the idea of a right to visit, but this becomes a matter of international law, not cosmopolitan law. In the law of peoples, or international law, Kant says, “we must take into account not only the relationship of one State in relation to another as a whole, but also the relationship of the individual persons of one State in relation to the individuals of another, as well as in relation to 11

Kant, ZeF, AA: 358. Kant, ZeF, AA 8: 360. 13 Byrd/Hruschka (2010), p. 205. 14 Byrd/Hruschka (2010), p. 206.

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the other State as a whole.”15 The relationship between an individual and a State appears here as a matter of international law, and not of cosmopolitan law, as is the case of Toward Perpetual Peace. What is the destination, then, of cosmopolitan right (ius cosmopoliticum) in The Doctrine of Right? Kant explains to us that cosmopolitan right “is related to the possible union of all nations with a view to certain universal laws for their possible commerce.”16 Although this trade can be interpreted as a mere relationship between peoples, according to Byrd and Hruschka17, this is not only Verkehr in the sense of interaction, but in the sense of commercial relationship (Handelsverkehr). It is not the States that make that trade, but the peoples. While inside a State, it is the individuals who deal with trade, in the relationship between States, it is the peoples who deal with this interaction, and it is up to the cosmopolitan right to only regulate it. We see then that, in The Doctrine of Law, cosmopolitan law loses the connotation of the right of an individual before a foreign State, to become a commercial relationship between peoples.

II. Is it possible a right of refugees in Kant? Could the right of hospitality justify a right of refugees? Does the individual have the right to seek shelter in other states if he is in danger? Although Kant admits a right of hospitality, this seems to be limited to the possibility of visit, depending on the permission of the State that receives it. If the State refuses to receive the visitor, the visitor will not have the right to, even so, remain in the territory. If we return to the text, we see that Kant places a condition for the rejection of the foreigner: “the other can turn him away, if this can be done without destroying him.”18 If the foreigner is at risk of life at his place of origin, the state could not reject him. Kant, however, does not detail the situations in which the foreigner could not be rejected because it could be destroyed. Arthur Ripstein offers us an explanation for this clause. The power that a state officer exercises over a foreigner must be consistent with his innate right to humanity, “which includes the right to disjunctive possession of the surface of the earth.”19 This mean that “the establishment of national borders are only compatible with your innate right, provided you have somewhere to go”20. The right to disjunctive possession of the land implies the acceptance of the 15

Kant, RL, AA 06: 343. Kant, RL, AA 06: 353. 17 Byrd/Hruschka (2010), p. 209. 18 Kant, ZeF, AA 08: 358. 19 Ripstein (2009), p. 298. 20 Ripstein (2009), p. 298. 16

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foreigner if he has no other place to return safely, or he can be destroyed in his State of origin if he returns there. The question whether the right of hospitality implies a refugee right does not offer an easy answer. Kant is ambiguous at this point and, in Toward Perpetual Peace, he indicates that the right of foreigners should be restricted to trade: “But this right to hospitality – that is, the authorization of a foreign newcomer – does not extend beyond the conditions which make it possible to seek commerce with the old inhabitants. In this way distant parts of the world can enter peaceably into relations with one another, which can eventually become publicly lawful and so finally bring the human race closer to a cosmopolitan constitution”21.

Here Kant understands that newly arrived foreigners should be well received if their goal was to try to establish trade with the inhabitants of that State. However, Kant warns us about the fact that European civilized states exercised a colonialist policy and, under the pretext of making trade with some states, only oppressed their inhabitants. This happened in the East Indies (Hindutan), in which they “they brought in foreign soldiers under the pretext of merely proposing to set up trading posts, but with them oppression of the inhabitants, incitement of the various Indian States to widespread wars, famine, rebelions, treachery, and the whole litany of troubles that oppress the human race”22. This is an interesting quote that shows Kant’s non-colonialist view and condemns the oppression of one state by another. For this reason, he accepts that China and Japan have banned foreigners from entering their territory. In The Doctrine of Law, Kant also understands cosmopolitan law as a right of peoples to offer themselves to trade. Nations are thought in a community on earth, with no legal possession shared between nations, but a space in which they offer to trade with each other23. The possibility of the right that guarantees every citizen of the world to remain in a state other than his own, if he wishes or needs it, is a controversial topic within the Kantian text itself. In some passages, this right is limited to a right of visit; in others, to trade with inhabitants of a foreign state; in turn, in the aforementioned passage from Perpetual Peace, the foreigner could not be sent away if this caused its destruction. Kant does not seem to give a definitive solution and clarify what exactly this universal hospitality consists of; however, it paves the way for the possibility of thinking about an individual’s right that is not conditioned to the sphere of his State. Some commentators think that the text opens the possibility of a refugees right to refuge, others think that the right outside their State of origin is a chimera for Kant. Among the first group is certainly Pauline Kleingeld, who perceives in Kant a little 21

Kant, ZeF, AA 08: 358. Kant, ZeF, AA 08: 359. 23 Kant, RL, AA 06: 352.

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more legal guarantees than the right to visit. She understands that cosmopolitan law, even if it is limited to the right to hospitality, can have substantial implications for the status of the world’s citizens and understands that the accepted principle of being able to refuse a visitor only when he is in no danger can lead to a refugee right: “When refusing a person at the border is impossible without leading to the person death, admission is obligatory, at least until circumstances abroad have improved. And one cannot legitimately expel a person to a country where she or he will die or be killed as a result of being expelled. Kant here in effect anticipates many of the refugee rights, including the principle of non-refoulement, that were established in the twentieth century”24.

Kleingeld goes beyond the consideration of refugee law as a possible reading for cosmopolitan law in Kant. She considers that there is a way of understanding Kantian cosmopolitan law as indirectly democratic and that Weltbürger’s idea can have a topicality in a system of institutions on a global level: “In a parallel fashion, one could conceive of Kant cosmopolitan right as indirectly democratic, and the term citizen in the world citizen does not have to be read merely metaphorically, if the states concerned are republican. For in a republic, those who determine the laws that are to enact cosmopolitan right are representatives who are elected by and accountable to their constituents. Thus, individual citizens can at the same time be conceived as world citizens who co-legislate indirectly, through representatives who participate in forming and governing institutions at the global level”25.

Kleingeld sees a possibility of deliberation in the individual’s participation in a global network of public spheres and international organizations. It reminds us that Kant related the exercise of citizenship to the participation in public deliberation, which could lead, in this case, to the admission of an international citizenship. Although interesting, it seems that Kleingeld’s interpretation goes beyond Kantian ambitions, because co-legislation through representatives is only valid, within the Kantian system, for citizens of a given State, and citizens of other States could not be co-legislators outside their State of origin. The strategy followed to prove that it is possible for citizens to have rights outside the State implies showing that there is an international public sphere, which works as a world State. However, Kant denies the existence of a world State, which makes it difficult to accept an international citizenship.

III. The spirit beyond the letter There are several questions to which Kant offers no answer when we speak of a cosmopolitan right, or a right of individuals outside their home States. We do not know what is the exact meaning of the clause “the State can reject the foreigner if 24 25

Kleingeld (2012), p. 77. Kleingeld (2012), p. 90.

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this can occur without destroying it.” What would you tell as possible destruction? A risk of death, a possibility of political persecution, hunger, ethnic discrimination? In addition to this indetermination in what can be considered a risk, we also have the question of how to think of the right of an individual outside his State. Who would act to compel a State to do its duty to an individual who does not belong to that State? Kleingeld points to two major difficulties in Kantian cosmopolitan law. The first would be the question of how law enforcement can work in the case of cosmopolitan law, since there isn’t any right without an associated possibility of coercion. The second is to determine what cosmopolitan citizenship consists of and how States and individuals could both be “conceived as citizens in this universal State of humanity”26. This indetermination and lack of answers may have led Kant to write that cosmopolitan law is an unwritten complement to international law, as it would be difficult to determine which legal order would be responsible for the fulfillment of an individual’s right outside his State of origin. Although the letter of the Kantian text does not give us these answers, the spirit of its cosmopolitan philosophy ends up going through centuries, bearing fruit in the twentieth century. In 1951, the Geneva Convention ensured a Refugee Statute, under which States undertake not to expel those individuals seeking asylum on grounds of threat or persecution in their country of origin, based on race, religion, nationality, social group or political position. Here cosmopolitan law acquires a legal form, in which States are members and refugee individuals are the object of this treaty. It seems to us that the spirit of the Kantian text ends up imposing itself in time, leading to the existence of a right of hospitality, valid everywhere on earth, without the ties – and possible internal injustice – of the national States. References Byrd, Sharon/Hruschka, Joachim: Kant’s Doctrine of Right, a commentary, New York 2010. Kant, Immanuel: Metaphysik der Sitten/ Rechtslehre. Kants gesammelte Schriften. Königlich Preussischen Akademie der Wissenschaften, vol. 6, Berlin: Walter de Gruyter & Co., 1900. Kant, Immanuel: Über den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber nicht fur die Praxis. Kants gesammelte Schriften. Königlich Preussischen Akademie der Wissenschaften, vol. 8, Berlin: Walter de Gruyter & Co., 1900. Kant, Immanuel: Zum ewigen Frieden. Kants gesammelte Schriften. Königlich Preussischen Akademie der Wissenschaften, vol. 8, Berlin: Walter de Gruyter & Co., 1900. Kleingeld, Pauline: Kant and Cosmopolitanism, New York 2012. Ripstein, Arthur: Force and Freedom: Kant’s legal and political philosophy, Cambridge 2009. 26

Kleingeld (2010), p. 87.

Two moments of Kantian cosmopolitanism By Vinicius de Figueiredo When one thinks of Kant’s cosmopolitanism, the first text that comes to mind is the Idea for a Universal History with a Cosmopolitan Purpose, from 1784. Cosmopolitanism is present in both the title as well as in the text itself – and in two forms that should be at once differentiated. On the one hand, it represents a perspective determined over mundane events; on the other hand, it expresses a juridical ideal that concerns the whole of the States whose relationships enable the idea of a federation of nations – an idea which, as it is known, will be reassessed and deepened by Kant in the the Perpetual Peace, of 1795/1796. The “cosmopolitanism” covered a long way in the history of philosophy before arriving at Kant. According to the Grimm’s Dictionary (1854), “Weltbürger” goes back to the greek “joslopok¸tgr”. Although it was already in circulation in german in the XVIIth century, Weltbürger and its variations were only consolidated in the next century, favoured by the french “cosmopolite”. “Weltbürger”, a compound word (Welt, Bürger), reflects the junction between “kosmos” and the “pólis”. However, how to characterize this qualification of cosmos by its junction with the pólis? Or conversely, how to understand the pólis, i. e., “politics” so it can be seen as inscribed in the cosmological plan? Starting with the “world”, one should remember that “Cosmologie” or “Kosmologie” enjoyed a wide circulation during the german XVIIIth century. Johann Heinrich Lambert, for example, published his Cosmological Letters on the Arrangement of the World Edifice in 1761. Such as in other texts on the same affiliation, “cosmological” or “cosmology“ circumscribes a semantic field of its own, normalized in the interior of the Schukmetaphysik in the 1700s through C. Wolff and A. Baumgarten’s compendiums, used in the German universities in Kant’s time. In this lineage’s framework, the “Cosmologie”, together with the rational psychology and theology constitute the disciplines of the “metaphysica specialis”, different from the “general ontology” or the “universal metaphysics”. The same meaning of cosmology emerges again in the Transcendental Dialectic of the Critique of Pure Reason, whose framework, tributary from this tradition, follows, in the second part of the Transcendental Logic – that is, in the Transcendental Dialectic – the tripartite disciplinary division of the special metaphysics in rational psychology, cosmology and theology. Even though the significance of the term remains the same, Kant breaks with the tradition that came before him. The Critique, after all, extinguishes the dogmatic expectations placed upon cosmology, just as upon

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the other two rational disciplines. Since the text on the universal history was published three years after the first edition of the Critique, whose results related to the metaphysica specialis are recovered in the second edition of 1787, there is no reason to suppose that, in the essay of 1784, the “cosmological” covered in the “cosmopolitanism“ would not be mediated through the critical treatment given to rational cosmology within Transcendental Dialectic. But what to say about the political aspect of our term? In the 1784’s essay it is implied through the standpoint upon which the “history of the world” focuses the human events – a non-theoretical perspective that institutes the judgement that separates, in the inexhaustible ensemble of events of factual history, what is or not relevant for the general progress of mankind. The political aspect is then connected to a normative consideration, certified by the incidence, in the text, of the expressions of speculative nature, such as “nature’s purpose”, “teleological doctrine of nature”, and “natural dispositions” – images with the same purpose as in the “Ideal of Pure Reason” and in the “Appendix to Transcendental Dialectic” of 1781. This observation allows the assumption that the appeal to the speculative lexicon, in the same direction to what goes to the rational concept of “world”, is found to be equally immunized against dogmatism thanks to the copernican revolution performed in the Critique of Pure Reason. Before seeking for its other implications, we may start by assuring ourselves, through the simple appeal to chronology, that the “cosmopolitanism” of 1784 has a right to critical citizenship.

I. The cosmopolitanism in 1764 But what does this first definition enable in order to qualify the Kantian concept of cosmopolitanism? A comparison with other texts of Kant himself might be useful. It was not only the term “cosmological”, which was widespread in the german scholastic metaphysics in the XVIIIth century, that didn’t wait for the critical decade in order to be featured in the Kantian corpus. The same happens with the adjective “weltbürgerlichch”/“cosmopolitan”, much less employed. Its first apparition by Kant, if I’m not mistaken, occurs through a noun at the outcome of the Observations on the Feeling of the Beautiful and Sublime (1764): “Finally, after the human genius had happily lifted itself out of an almost complete destruction by a kind of palingenesis, we see in our own times the proper taste for the beautiful and noble blossom in the arts and sciences as well as with regard to the moral, and there is nothing more to be wished than that the false brilliance, which so readily deceives, should not distance us unnoticed from noble simplicity, but especially that the as yet undiscovered secret of education should be torn away from the ancient delusion in order early to raise the moral feeling in the breast of every young citizen of the world into an active

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sentiment, so that all delicacy should not merely amount to the fleeting and idle gratification of judging with more or less taste that which goes on outside of us”1.

In this passage, the cosmopolitan citizen is not defined by its belonging to a certain pólis; he designates the subject of a moral pedagogy, whose objective is negatively defined. It is expected from the “young citizen of the world” to be endowed with refinement, without, for this reason, becoming lightheaded regarding the evaluation that he does about the others. The sophistication of practices seems to bring with it the risk of losing sight of the “noble simplicity”, which should, on the contrary, guide our conduct and our judgements. The political aspect connects itself to the good employment of the power of judgement, glimpsed as possible and desirable in a comprehensive historical order, in which mankind, by lifting itself after almost disappearing, sees now blossom the “proper taste for the beautiful and noble […] in the arts and sciences as well as with regard to the moral”. What else can be draw from this point? The inscription of cosmopolitanism in a temporality of large scale, in which Kant makes a clear reference to the Middle Ages and to the Renaissance in order to, subsequently, be positioned in the present days, raises the question whether, regarding the expectation that the “young citizen of the world” employs his judgement with discernment, wouldn’t underlie some type of philosophy of history which linked all human events in a order headed by a moral-practical end. That something of this order is present seems obvious. The “taste of the beautiful and noble” is here temporalized, i. e., inscribed in a social process, before which Kant raises expectations in regard to the accomplishment of the moral end that inspires the pedagogy of the man here depicted. On the other hand, regarding the whole, the passage is content with presenting an appraisement or making a bet, leaving it clear that the accomplishment of this ideal remains open. Thus, although the matter of cosmopolitanism emerges in 1764 associated with the implicit appeal to a philosophy of history, the latter does not foresee whatever it might be about the future. The subsequent development of mankind is a book yet to be written. With respect to the Observations, the philosophical tone that ends up permeating the history of events gives no spoiler on what awaits mankind at the end of times. It consists only of granting moral and political dignity to the present and to the whole of emancipatory possibilities covered by it, in a dispute that concerns “taste” and “refinement”, understood as practices of the power of judgement turned to the enlightenment of men. Cosmopolitanism, philosophy of history and analysis of culture walk together, anticipating what will be verified in 1784, when they will be again brought together in the whole formed by the essays on the Enlightenment and the universal history. In this subsequent step, however, cosmopolitanism already moves immunized by the Critique of Pure Reason against dogmatism; it is worthwhile to pose the question around the status that the kantian cosmopolitanism enjoyed before the copernican revolution in philosophy. Would the simple fact that 1

Kant, GSE AA 02: 256; transl. (2007), p. 62.

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the writing of the Observations was carried forth in the pre-critical period suffice to affirm that their claims about history convey dogmatic premises?

II. Distinction of analytical plans Let us examine this question from the elements provided by the text itself. It is foremost convenient to deepen what the initial reminder means, namely that the view taken in the Observations will be “more with the eye of an observer than of the philosopher”2. The adoption of the “method” of observation, expressed in the title, is also reenacted in the outcome: the last paragraph, from where I drew the previous long quotation, begins as following: “If finally we cast a few glances at history…”3. We must agree that to cast a few glances leads us to believe in a certain detachment in relation to the difficult investigations demanded by the “endless instability”4 of the neverending combats between the metaphysical sects – a diagnosis which, from the early 1760s onwards will motivate Kant to carry forth the reform of the philosophical method. By assuming the “observation”, in all cases, he seems to search for a pause regarding the confrontation with matters properly philosophical. The focus on the context in which the Observations were drafted might also lead to think that the method in question keeps distance from everything that is speculative. As it is known, the first half of the 1760s is also the period in which Kant came into contact with the scotish moralists (including D. Hume) and Jean-Jacques Rousseau. The Social Contract and Emile, works which deserved special attention from the german philosopher, had been published in 1762. The Observations, composed by the time in which Kant had been called the “German Shaftesbury” by Herder, contains references to the British and French debates on culture, morality and morals. It is under these influences that Kant prepared the text; it is not surprising that there he is not detained in examining the foundation of moral obligation, as he had done shortly before in the Inquiry Concerning the Distinctness of the Principles of Natural Theology and Morality (written between 1762/63 and published in 1764). Instead of this, individual purposes are considered from the point of view of their social effects. In a clear anticipation of the “cunning of reason”, Kant claims, in the second session of the Observations, to be beneficial, from the point of view of “the whole good”, that the most part of the agents be guided by selfish principles5. Seeking the approval of others, they end up inadvertently favouring the moral progress of humanity. If such a conclusion does not conflict with the delimitation of the principle of obligation, put forward in the Investigation, it is because Kant diversifies 2

Kant, GSE, AA 02: 207; transl. p. 23. Kant, GSE, AA 02: 255; transl. (2018), p. 61. 4 Kant, UD, AA 02: 275; transl. (2011), p. 221. 5 Kant, GSE, AA: 02: 227; transl. (2007), p. 39. 3

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the plans. It is as if he in the Observations, in order to communicate himself, adopted a different soundtrack from the one he had already inquired through the morality of the individual agent. This distinction of plans, by the way, anticipates that which will be the critical work par excellence from the 1780s onwards. In effect, the variation of perspectives enabled by the diversification of analytical plans will correspond to a central element of the critical rationality – required, moreover, in order to distinguish the two points of view about things in general, qualified since 1781 as phenomena or things in themselves6. It remains to be known whether the perspective of the observer, put into practice in the Observations, doesn’t embody metaphysical elements of another scope, different from the one through which the analysis of the agent’s intentions goes. By what was already advanced here, the cosmopolitan point of view of 1764 can be qualified as a perspective on culture and morals, which, without leaving aside the morality of human conduct, evaluates them under the perspective of history, that is, the meaning that they carry for the whole of mankind. Thus, cosmopolitanism makes it possible to undertake observations about the difference between temperaments, gender divisions and the diversity of people, all that without being hostage of the investigation about the principle of obligation. To be cosmopolitan requires transposing the limits of analysis of intentions of moral consciousness – something that, in fact, constitutes an indispensable clause in order to even consider politics. However, in order to advance in our discussion, the emancipation of the method of observation in relation to the analysis of the moral principles is not sufficient to answer the question regarding the presence or not of speculative presuppositions in the 1764’s text. It might well be that the political reflection, in order to retake moral questions projecting them into history, appeals to speculative principles connected not to the identification of the “legal necessity” (that is, unconditional) of the ends as a distinguishing characteristic of the practical duty, as one reads in the endpoint of the Inquiry Concerning the Distinctness7, but rather, eventually, to the image of divine providence. This hypothesis is, moreover, accepted by the perspective of the method, about which we already spoke. Since the diversification of analytical plans which Kant makes use of already in the 1760s pushes him to establish articulations between them. The methodological discovery of the diversification of perspectives invites one to search the ballast of rationality for the conjunctural analysis that, as instructed by the Schulmetaphysik in which Kant was educated, is settled in the body of disciplines of the metaphysica specialis, among which stands out exactly the rational theology. Thus, let us analyze whether, on behalf of cosmopolitanism, Kant does not counter the plan of the observations of costumes in the metaphysical consideration of providence. One should be reminded, by the way, that the Observations were published only one year after the first edition of the The only possible Argument in Support of a Dem6 7

Kant, KrV, B XX. Kant, UD, AA 02: 298; transl. (2011), p. 137.

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onstration of the Existence of God (1763). This is a difficult writing, since Kant hesitates in providing a full proof of the existence of the supreme Being. It suffices to read the last sentence of the text in order to realize this: “It is absolutely necessary that one should convince oneself that God exists; that His existence should be demonstrated, however, is not so necessary”8. Kant refutes throughout this text the cartesian proof, entitled “the ontological proof”, providing in its place a demonstration based on the argument that, if something is possible, then God exists. The analysis of the possibility reveals that something is only possible if their constitutive elements are logically compatible, that is, if there is no contradiction between them. However, there may not exist relations without existing a support for them. Every relation connects something to another thing, different from it. There is, therefore, a matter of what is possible, and to deny it would be to abolish all the possibility. Kant then concludes by the equivalence of this whole of reality and the supreme Being. This is thus the a priori proof, which provides rational theology with the only ground of proof for the idea of an ordaining God, what carries cosmological implications: “order, beauty and perfection in all diat is possible presuppose either a being, in die properties of which diese relations are grounded, or, at least, a being through which, as from a principal ground, tilings agreeing with these relations are possible”9. In the Observations, the theological principle of order of the world functions implicitly, assuring that the existing contrasts between individuals exhibit “the great portrait of human nature in its entirety in a moving form”10 – i. e., as a diversity ordered under the “project of great nature”11. In this way, the diversity of human temperaments creates a whole, which obeys the “great aim of nature [die grosse Absicht der Natur]”12. Even though most of mankind is constituted by individuals that “have their dear self before them as the sole focal point of their efforts and who attempt to make everything turn on the great axis of self-interest”, what is observed is that this diffuse egotism is beneficial for the whole: “Nothing can be more advantageous than this, for these are the most industrious, orderly, and prudent people; they give demeanor and solidity to the whole, for even without aiming at it they serve the common good, supply the necessary requisites, and provide the foundations over which finer souls can spread beauty and harmony”13.

Thus, here are some preliminary results. In its first appearance in the Kantian corpus, cosmopolitanism involves a consideration of human actions, which are not restricted to reflecting on the moral value of individual agents. However, if Kant disconsiders the principles of moral obligation, it is because, by carrying through the analysis of the overall effect in which the conducts socially produce, he appeals to 8

Kant, BDG, AA 02: transl. (1992), p. 194. Kant, BDG, AA 02: 88; transl. (2011), p. 132; see 02: 91/92. 10 Kant, GSE, AA 02: 226; transl. (2007), p. 39. 11 Kant, GSE, AA 02: 227; transl. (2007), p. 39. 12 Kant, GSE, AA 02: 227; transl. (2007), p. 39. 13 Kant, GSE, AA 02: 227; transl. (2007), p. 39. 9

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principles taken from speculative theology. It is thereby proving the fact that in the arguments presented in the second session of the Observations, turned to the qualities of the sublime and the beautiful in men in general, “nature” sometimes acts as if it were the divine providence.

III. Cosmopolitanism and special metaphysics in 1784 What does these remarks on the Observations on the Feeling of the Beautiful and Sublime teaches, in which, on the contrary of what could be believed in a first reading, the initial incidence of the theme of cosmopolitanism is connected to speculative premises? Should we imagine that the things alter themselves in the framework unveiled by the copernican revolution in philosophy? It was earlier shown how Kant, in the Idea for a universal History with a cosmopolitan Purpose, makes use of a lexicon familiar to the special metaphysics by putting forward notions such as “purpose of nature”, “teleological doctrine of nature”, or “natural dispositions”. Furthermore, in another direction, it should be added that moments from the 1784’s text follow closely arguments and conclusions presented in the Observations. An example of this is the passage below which, by outlining in the middle of the critical decade the “cunning of reason”, clearly evokes the excerpt already quoted form the Observations: “Individual men and even entire nations little imagine that, while they are pursuing their own ends, each in his own way and often in opposition to others, they are unwittingly guided in their advance along a course intended by nature. They are unconsciously promoting an end which, even if they knew what it was, would scarcely arouse their interest”14.

These correspondences are not random. On the contrary, they are explained through Kant’s appeal to the speculative background represented in both cases by rational theology. It is opportune to briefly examine, then, the status that the critical idealism founded in 1781 holds to it. The first pages of the “transcendental Dialectic” present us with the transcendental ideas as “grounded in the nature of human reason“ and as having the function of “extending the unity of the understanding, if possible, to the unconditioned”. Although they lack a suitable use in concreto, they are indispensable in order to “point the understanding in the right direction so that it may be thoroughly consistent with itself when it extends itself to its uttermost extremes”15. In the chapter dedicated to the “ideal of pure reason” – which, in the Critique, takes the place of the dogmatic rational theology –, we are faced with the same reminder: even though they do not possess objective reality, the ideas contain a certain “completeness that no possible empirical cognition ever achieves, and with them reason has a systematic unity only 14 15

Kant, IaG, AA 08: 17; transl. (1991), p. 41. Kant, KrV, A 323/B 380; transl. (1999), p. 400.

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in the sense that the empirically possible unity seeks to approach it without ever completely reaching it”16. This systematic unity, as read in the “Appendix to the Transcendental Dialectic”, expresses the nature of reason itself: “If we survey the cognitions of our understanding in their entire range, then we find what reason quite uniquely prescribes and seeks to bring about concerning it is the systematic in cognition, i. e., its interconnection based on one principle”17.

This step is illustrative regarding the role of the speculative ideas within critical epistemology. Since, without the determinations produced by the application of the concepts of understanding on the phenomena being reported to the systematic unity thought by reason, under the image of the theological idea, there would be no way of ensuring intelligibility to experience. Were not the reason to provide (in thought) the unity to diversity of phenomena considered materially, “then the logical law of genera would not obtain at all, no concept of a genus, nor any other universal concept, indeed no understanding at all would obtain, since it is the understanding that has to do with such concepts”18. In the 1784’s essay, although the subject is another one, we are also directly faced with the pair unity/diversity. Kant makes clear right at the beginning of the text, that, if we ever abandon ourselves to historical facts, we would never be able to discover, from them, any lasting articulation. The events connected to nations and States become comprehensible inasmuch as we make use of a synoptic principle capable of glimpsing unity in diversity. This principle is the rational presupposition of providence or nature, only by reference of which the philosopher of history might assess the moral progress of mankind. Only then can the Historie give place to Weltgeschichte, making that “what strikes us in the actions of individuals as confused and fortuitous” may be “recognized in the history of the entire species, as steadily advancing but slow development of man’s original capacities”19. The synoptical view involved by the cosmopolitan point of view redirects to the whole of rational cosmology, as it already happened in 1764. And the analogy does not stop there: just as in the Observations, the totalization implied by cosmology also in the Idea subordinates itself to the presupposition of the existence of a providence, an origin and ordering principle of the “cosmos’’. As if the already quoted expression of a “purpose in nature“ was not enough, Kant speaks in terms of a “plan of nature a history of creatures who act without a plan of their own ”20 or, through a seemingly novelty, of a “teleological theory of nature”, without which we would be faced with an “game without end of nature”21. The “unsoci16

Kant, KrV, A 567 – 568/B 595 – 596; transl. (1999), p. 551. Kant, KrV, A 645/B 673; transl. (1999), p. 591. 18 Kant, KrV, A 653 – 654/B 681 – 682; my emphasis. 19 Kant, IaG, AA 08:17, transl. (1991), p. 41. 20 Kant, IaG, AA 08:18; transl. (1991), p. 42. 21 Kant, IaG, AA 08:18; transl. (1991), p. 42. 17

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able sociability”, artifice of which nature exploits in order to carry out its dispositions in relation to men, rests on the same speculative idea. “Man wishes concord, but nature, knowing better what is good for his species, wishes discord”22. By the end of this step, with which the 4th Proposition of the Idea is concluded, Kant claims that the development of those natural dispositions – which, be remembered, is the rational presupposition that grounds the Weltgeschichte – reveals the disposition of a wise creator, and “not, as it might seem, the hand of a malicious spirit who had meddled in the creator’s glorious work or spoiled it out of envy”23. Although it is not essential for the objective here exposed, it is worthwhile observing that the same conceptual scheme will again emerge in Kant’s argument in the Perpetual Peace. In the “First Supplement”, Kant claims that the guarantee of perpetual peace is “the great artist Nature herself (natura daedala rerum). The mechanical process of nature visibly exhibits the purposive plan of producing concord among men, even against their will and indeed by means of their very discord”24.

IV. Conclusion By resuming the Observations on the Feeling of the Beautiful and Sublime, in order to examine the first appearance of “cosmopolitanism” in Kant’s texts, it was verified that its coming into play happens in an argumentative context diverse from the investigation on the first metaphysical principles – or the grounding, if one prefers25 – of morals, carried out in the Inquiry Concerning the Distinctness of the Principles of Natural Theology and Morality. But not even for this reason avoided Kant asserting speculatively cosmopolitanism. It was seen in effect what is the nature of the connection between cosmopolitanism and special metaphysics: be it in its first appearance in 1764, be it in its critical version in 1784, cosmopolitanism owes less to cosmology than to rational theology. That’s because “cosmopolitanism” subordinates the idea of the whole, intrinsic to cosmology, to a transcendent principle that accounts for the efficient organization of the temperaments, conducts and human affections – an organization which, in the remote times of the Greek city, was at the same moment required by the pólis and satisfied within its limits. The landscape changes already within Roman stoicism, which makes the cosmos the ideal place to be inhabited by the wise man. In modernity, the principle that accounts for this organization also surpasses the scope of the individuals, of ends and particular interests, referring to the plans not always discernible which a personal God reserved for its creatures. Kantian cosmopolitanism, in its two moments here examined, is in-

22

Kant, IaG, AA 08:21; transl. (1991), p. 45. Kant, IaG, AA 08: 22; transl. (1991), p. 45. 24 Kant, ZeF, AA 08: 360; transl. (1991), p. 108. 25 Louden (2000).

23

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scribed in this lineage, as is revealed by the roots of the considerations of the history of the world in the special metaphysics. But then, what is the difference between 1764 and 1784? One could already claim that it does not concern the degree of compromise of cosmopolitanism with the special metaphysics from one writing to the other. Going further, one could ask: what about the critical content of cosmopolitanism, does it change when comparing the Observations with the Idea? Here, it is nothing less than the meaning of critique that our judgement demands. For the moment, I can only reaffirm my conviction regarding the critical character of the “Transcendental Dialectic of the Pure Reason”, with a special emphasis on the decisive – but not dogmatic – function, that the “Appendix to the Transcendental Dialectic” confers to the rational illusions for the experiential knowledge. Since, as in the text, despite not having objective validity, the totalization produced by rational illusion is what enables thinking the phenomena of nature as events endowed with regularity, as arranged in an ordered fashion – therefore, as prone to some end. Now, we have seen that Kant brings to bear the same speculative premisse in the essay of 1784, in order to, with it, introduce, in the scope of human events, a history endowed with meaning, without which it would not be possible to glimpse the moral progress of mankind. All of this is critical and speculative, although not dogmatic; and, so not to be lost within this, it suffices to pay attention to the fact that the Kantian critique was always opposed to dogmatism, and not to metaphysics (which it will rehabilitate and promote). Concerning the Observations, would those conclusions related to the critical decade be also applied to Kant’s position in the beginning of the 1760s? A great deal of the answer depends on the way through which one interprets the writing about the only possible argument in support of a demonstration of the existence of God: could one consider it, without hesitation, a dogmatic text? Since the question ultimately goes through determining whether the totality thought by reason under the image of “nature”, in the Observations would or not admit a positive formulation, as the ones provided at the time by the dogmatic rational theology, whose validity is examined on the writing on the proofs of the existence of God. But this deserves to be discussed on another occasion. One can however affirm that, both in 1764 as well as 20 years later, cosmopolitanism points out that the investigation of the principles of morality, if left by itself, cannot afford to explain life as it is. But to say how life is… from which stance? There lies the dexterity of the “observer”, capable of reflecting how the motivations behind the actions of agents are inscribed in reality. He considers the human things referring them to a meaning which transcends them, a “beyond here” (meta-physica), which we would mistakenly understand if we associate it with a world inhabited by suprasensible beings. It is a matter of referring our judgment about human experiences to a principle that is capable of integrating them into a wide-ranging comprehension, as if they were guided by providence. To refer to this “non-place” becomes the condition to write the history of human events. And, therefore, the utopia is then limited by Kant to its most modest and “critical”

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meaning, namely the one which contents itself with the supposition (that, as a judgement, already implies a position) that the phenomena do make any sense. References Grimm, Jacob/Grimm, Wilhelm: Deutsches Wörterbuch von Jacob Grimm und Wilhelm Grimm, 1854. https://www.dwds.de/wb/dwb/Weltb%C3%BCrger. Kant, Immanuel: Kants Gesammelte Schriften, Berlin: Walter de Gruyter, 192 ff. Kant, Immanuel: Ideas for a Universal History with a Cosmopolitan Purpose, in: R. Geuss/Q. Skinner (eds.), Kant: Political Writings, Cambridge Texts in the History of Political Thought, Cambridge 1991, pp. 41 – 53. Kant, Immanuel: Perpetual Peace: A Philosophical Sketch, in: R. Geuss/Q. Skinner (eds.), Kant: Political Writings (Cambridge Texts in the History of Political Thought), Cambridge 1991, pp. 93 – 130. Kant, Immanuel: Theoretical Philosophy, 1755 – 1770, in: D. Walford (ed.), The Cambridge Edition of the Works of Immanuel Kant, Cambridge 1992. doi:10.1017/CB09780511840180. Kant, Immanuel: Critique of Pure Reason. The Cambridge Edition of the Works of Immanuel Kant, Cambridge 1999. Kant, Immanuel: Anthropology, History, and Education, in: R. Louden/G. Zöller (eds.), The Cambridge Edition of the Works of Immanuel Kant, Cambridge 2007. doi:10.1017/ CBO9780511791925. Kant, Immanuel: Inquiry Concerning the Distinctness of the Principles of Natural Theology and Morality (1764), in: P. Frierson/P. Guyer (eds.), Kant: Observations on the Feeling of the Beautiful and Sublime and Other Writings, Cambridge Texts in the History of Philosophy, Cambridge 2011, pp. 219 – 248. Louden, R. B.: Kant’s Impure Ethics – From Rational Beings to Human Beings, New York/Oxford 2000.

Fichte’s Closed Commercial State from a cosmopolitan perspective: Identifying agreement in spite of apparent contradictions By Giorgia Cecchinato The Closed Commercial State. A philosophical development as an appendix to the Doctrine of law and proof of a future policy1 was written in 1800. Following the dispute over atheism in 1799, Fichte lost his chair in Jena and sought asylum in Berlin2. The writing was devoted to the Minister of Finance Karl August von Struensee and has an explicit word of gratitude to the kingdom of Prussia where he is a guest. As we consider his text, therefore, we must not underestimate its relation to the economic and institutional situation of Prussia at the time, that is, the debate about the economic reforms of the kingdom and the Prussian civil code, the Allgemeine Landsrecht, issued in 17943. On the other hand, the proposal for reforms aimed at closing all types of trade with the outside world, goes beyond the simple outlook of the moment and shows, in addition to some evident changes, an essential continuity of the legal political outlook Fichte had been developing since the development of his transcendental philosophy, mainly with the Foundations of Natural Right of 1796, as it becomes evident by the subtitle: Appendix to the Doctrine of Law. Considering the double matrix of circumstance and essential systematic continuity in The Closed Commercial State, this text is obviously a clear example of what Fichte calls “applied philosophy”, that is, a reflection that does not seek the general conditions of knowledge or action, but in agreement with them, submits the concrete historical conditions to analysis and provides indications for solving problems or contradictions of the present. Therefore, without forgetting its subtitle, this essay is also a “proof of a future policy”, a 1 Original title, Der geschloßne Handelsstaat. Ein philosophischer Entwurf als Anhang zur Rechtslehre, und Probe einer künftig zu liefernden Politik. The works of Fichte are cited according to the 2nd edition JG Fichte, Gesamtausgabe der Bayerischen Akademie der Wissenschaften, hrsg. von E. Fuchs, H. Gliwitzky, R. Lauth und PK Schneider et al., Frommannholzboog, Stuttgart 1962 – 2012, 42 Bände (GA) number volume, in Roman numeral, Reihe (line) in Arabic and page number. Soon afterwards, the page number of the English edition will be placed when possible. This work is part of the research project “Historia conceptual y crítica de la modernidad” (FFI2017 – 82195-P) of the AEI/FEDER, UE. 2 More information about the circumstances of the publication of The Closed Commercial State can be found in the Introduction (Vorwort) of the editors of the complete work: GA I, 7, 3 – 36. 3 Sabbatini (2017), pp. 1 – 3.

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field of confrontation and encounter between a political order regulated by reason and a specific social historical moment in Europe. The structure mirrors precisely these three stages: its first part is an exposition of what is right in terms of regarding commercial exchange in the rational State (“Philosophy”); the second analyzes what happens in the current exchange of States (“Contemporary history”); and the third indicates the mechanisms that can take the existing situation to what is required by reason (“Policy”). The text was received with skepticism and perplexity by its addressee, Minister von Struensee, who thanked but also pointed out the difference between ideal and reality, discarding any possibility of considering it as a concrete proposal4. It is also worth remembering that in a letter to Schiller, commenting on The Closed Commercial State, Koerner called the author the “philosophical Attila”5. The Closed Commercial State, after being forgotten and misunderstood for decades, came back to the center of the current debate in the interest of an economic proposal that does not welcome economic liberalism as obvious and inevitable. Instead, it proposes undoubtedly extreme ways to defend the citizen and the community from economic anarchy that places profit above freedom and rights, as well as economics above politics6. In this article, we want to show that the proposal for a closed commercial state does not entirely oppose the project of a confederation of states to guarantee peace, according to the Kantian cosmopolitan model, but, on the contrary, it can be inserted in a cosmopolitan perspective. However, we must also remember that Fichte’s text belongs to a specific historical context and a political debate. A joint view of the two perspectives will allow a more general assessment of the relevance of Fichte’s proposal.

I. From Review to Immanuel Kant’s Perpetual Peace to the Foundation of Natural Law: Peace and the State Fichte dedicated himself to reading Kant’s Perpetual Peace in the late summer of 1795, when, following violent conflicts with student fraternities, he interrupted his 4

GA I, 7, 12 – 13. Fuchs (1978), II, 423 – 24. 6 It is no accident that from the second decade of the 21st century, after the great financial crisis of 2008, the interest in Fichte’s writing has grown, giving way to new research, events and translations. See for example Nakhimovsky (2011), Fusaro (2014), Hoffmann (2018), Spalletti (2017). We cite for example the interesting XVI Seminar of Rete Italiana per la Ricerca su Fichte, Accademia Toscana di Scienze and Lettere “La Colombaria”, Firenze, 24, February, 2017 and the English translation of Adler (2012), a new translation for Sabbatini’s Italian is under way. 5

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lectures on the Doctrine of Science and isolated himself in the suburb of Ostmannstedt and worked on the Foundation of Natural Right, which would be published in two volumes in 1796 and 1797. According to his own words, just as he finished his own Foundation of Natural Right, he had the “most pleasant surprise with the publication of this very important text by Kant”7. The Review of Perpetual Peace was published in early 1796 by the Philosophisches Journal einer Gesellschaft Teuscher Gelehrten. On the one hand, it represents an attempt to disseminate the Kantian booklet, with which Fichte is substantially in agreement; on the other hand, it is a touchstone for the further development of his legal, political and moral thinking. For both philosophers the fundamental principle that guides the search for peace and leads to a confederation of states is the understanding that peace among humans is a demand of reason and not a “pious wish” of philanthropic minds8. Inspired by the peace of Basel, in which revolutionary France signed a largely secret agreement with Prussia, Kant presents his work as a hypothetical peace treaty, which would prevent any future conflict through a republican political practice at the state level and a federation of free states at the international level. The first section of Perpetual Peace has six preliminary articles necessary for the political implementation of peace. The objective is to condition the States in a negative way, that is, they show what should not be done to keep maintain peace. The second section sets out the three main articles, in the form of positive laws, which seek to ensure the necessary legal and political framework to ensure peace in relations between the States and, in this way, ensure an effective political and economic collaboration. There are only two fundamental questions about which Fichte is keen to move away from Kant’s position in the text. That which interests us here has to do with the staking out of the moral sphere in relation to the sphere of law and emerges in the comment about the difference between leges strictae and legis latae stated by Kant at the end of the first part9. According to Fichte, a certain incompatibility is evident between the permissiveness of law – which would restrict its validity to a determined sphere – and the universality required by the categorical imperative10. This mismatch would indicate the need for a source other than moral law for the foundation of natural law. It should be remembered that by the time Fichte wrote his review, he had already developed the concept of intersubjectivity, that is, the idea of the reciprocal recognition between free self-awareness, which is the basis for the theory of law, in the first paragraphs of the Foundations of Natural Right According to the Prin-

7

GA I, 3, 219. GA I, 3, 221. 9 Kant, AA VIII, 350. 10 I appreciate the opportunity I had to discuss these issues with Ricardo Corrêa Barbosa and Hans Christian Klotz and Marcos Paes de Carvalho at the pre-defense of the dissertation of Marcos Paes, Kant and Fichte on Peace Perpetua in December 2020. 8

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ciples of the Doctrine of Science11. Fichte’s deduction may be summarized as follows: if free self-consciousness is the consciousness of exercising causality in the outside world, this free action can only take place in relation to another free self-consciousness, otherwise the first self-consciousness would not be able to distinguish a free action from a mechanical effect. Only through an invitation (Aufforderung) from a rational being, another rational being can emancipate himself from sense limitations and act spontaneously on the basis of a rationally produced concept, that is, on the basis of rational purposes. In order to have ends, a free being must be invited by another equally free being: “Neither can recognize the other, if both do not recognize each other, neither can treat the other as a free being, if both do not do so reciprocally”12. The sphere of reciprocal self-limitation and reciprocal control of each other’s freedom and respect for the freedom of the other is the sphere of legal relations. For this reason, law is not about the inner conviction of freedom itself, but its external exercise in a plural sphere. Precisely in this outer sphere of the exercise of freedom as free causality according to ends, the State has a key role to reconcile the freedom of individuals as rational agents. According to Fichte, the State is a provisional institution that should disappear as rationality increases and spreads throughout the world13. Thus the State, as mediator of reason, would then have the historical horizon of becoming obsolete. In this sense, and specifically, as Fichte defends in the part dedicated to applied law in his Foundations of Natural Right, the State must regulate social organization and economic processes: there is a fundamental condition to act as a rational being and exercise one’s own causality in the outside world. That is to be able to live; for that reason the poor, that is, those who cannot support themselves with their own work, are entitled to assistance14. If they do not get this, they have no duty to recognize the property of others15. The State has a duty to guarantee assistance to the poor. On the other hand, the State also has the right to watch over how wealth is managed, since the careless management of resources would harm the well-being of the entire community, given that those who become poor have to be assisted by the community. In addition, the State must guarantee work and must intervene by limiting competition, ensuring the sale of goods, balancing relations between producers of raw materials and the processing sector, artisans. Fichte believes in the effectiveness of the State’s control of prices of basic necessities and preventive action against the consumption of luxury goods, especially if they are imported16, as this could generate dependence on foreign states.

11

Original title: Grundlage des Naturrechts nach Principien der Wissenschaftslehre. GA I, 3, 351. 13 De Pascale (2001), p. 305. 14 GA I, 3, 118. 15 GA I, 187. 16 GA I, 3, 207.

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Since foreign trade is a potential element of imbalance in the internal market and can lead to dependence, the state should limit it as far as possible: “since foreign trade makes people dependent and since its uniform duration cannot be invoked, each state should be recommended to so itself, so as to live without it”17. International law is dealt with by Fichte in the second Appendix to the Foundations of Natural Right. In the first part, on the rights of peoples, he proposes an alliance between states to organize a confederation of peoples whose primary purpose should be to ensure its own right to independence and respect for their citizens. In complete agreement with Kant’s Perpetual Peace, he believes in the possibility of expanding the confederation indefinitely beyond the confines of Europe and considers this alliance as the path to universal peace.

II. The Closed Commercial State As we have seen, in Fichte’s thinking preceding The Closed Commercial State, there is a tendency to value the confederative alliance between States as an instrument for maintaining peace; on the other hand, the State is recognized as having an important role in maintaining the balance of the sphere of action of free agents, especially in the economic sphere, since the maintenance of the means of support is a condition for maintaining life, which is a basic condition for acting rationally. In The Closed Commercial State these two perspectives end up coming together to the point that closing, or the total control of monetary and economic balance of the State, become the condition for freedom, the interstate alliance and peace. Fichte’s proposals reached the Prussian finance minister’s desk at a time when the debate over the country’s economic reforms was simmering. In 1798 – 99, the newly enthroned Friedrich Wilhelm III had created a commission to examine the difficult financial situation in Prussia and conduct a comprehensive review of its economic strategy. Struensee was appointed to the commission. He advocated the introduction of paper money and the elimination of export bans, but Struensee and his allies did not achieve any results. There were internal pressures to protect Prussian products from French and English aggressive trade and internal and external pressures to open Prussia to an economy that was already heading toward a global dimension and dynamics18. In this context that cannot be described in detail, Fichte’s proposal that denounced the problems arising from the importation of goods from abroad and from commercial competition without rules, takes on a different light. The project is rooted in the situation of Prussia at that time, but it develops from elements that come from Foundations of Natural Right.

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GA I, 4, 39, 206. Nakhimovsky (2011), pp. 106 – 115.

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It is the task of the State, as we have seen, to ensure by law the relations between free individuals. It allows, according to the circumstances, the gradual realization of reason in the world: “it is the vocation of the state to first give each what is his, to first put each in possession of his property, and only then to protect him in this”19. How is it possible to give each one what is his? Fichte provides an innovative definition of property here; he practically de-substantiates property and defines it not as the possession of goods, objects, but as the ability to dispose of goods for production and economic action: “I have described the right to property as an exclusive right to acts, not to things”20. To protect the productive activity of each one, the State must constantly and meticulously intervene not only in regulating the market, but also in creating supply and maintaining demand, especially through the management of the monetary and fiscal policy. For example, if on the one hand the State prohibits the accumulation of financial and food products and goods, on the other hand it guarantees that there will never be a drop in demand for those products and goods. The individual’s freedom to manage and make his property as productive as possible is subject to a very strict network of controls and legal provisions. But this is necessary to avoid the “struggle of all against all”, the “anarchy” of the market left completely free: in a situation of weak state regulation of the market, Fichte does not hesitate to define all profit as “theft”. For Fichte, the problem at this point is what is meant by “freedom”. It was previously seen that, for Fichte, freedom in the legal sphere is free and rational action limited by the freedom of others. Therefore, freedom and rule, action and restraint are co-implicated; freedom can never become anarchy, even less economic anarchy21. Thus, there is a denunciation of the greed of those who “enjoy cunning and fighting more than secure possession” and Fichte says: “It is these people who incessantly call out for freedom—freedom of trade and acquisition, freedom from supervision and policing, freedom from all order and morality. Whatever aims at strict regularity and at things taking a firmly ordered, thouroghly uniform course will appear to them as an infringement on their natural freedom. Such people must be repelled at the very thought possibility of an arrangement of public commerce in which swindling speculation, accidental profits, and sudden wealth would no longer occur”22.

19

GA I, 7, 53, 91. GA I, 7, 54 – 55, 92. 21 While here I tried to show the importance of the dynamics of the reciprocal limitation of free actions and the role of the State as a legal guarantor of this free interaction, Furlani’s text (Furlani (2005)) seeks to point to the systematic root of this limitation in the Foundation of the Entire Wissenschaftslehre. On the contrary, the reading of Fusaro (Fusaro (2014)) emphasizes the voluntarism or “titanism” of Fichte’s doctrine, giving more importance to free action and will against any and all obstacles, distorting, in my view, the Foundation of Natural Right and the political intentions of Fichte that the interpretation of Fusaro would anticipate Marx’s theories. 22 GA I, 7, 140. 20

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This freedom without restraint can only lead to war of everyone against everyone. If this can be avoided through state control and closure, to Fichte the same solution applies also in terms of relations between states. The Closed Commercial State thus constituted internally operates also in the international sphere, in interaction with other closed states. Fichte admits the use of an international currency, which the States may use in some legally well-defined cases. Also, each State delegates the right to mutual cohesion to a confederation of states, all closed, providing for a specific army uniquely prepared to intervene in case of interstate attacks. Since the states have obtained a system of legal and commercial closure, at the international level they must necessarily achieve the same purposes of individuals in the State: economic balance, ensuring a livelihood and peace for all within and outside the natural boundaries. Commercial closure is therefore the condition of determining subjects (individuals and states and inter-state institutions) and, at the same time, consists of a right and a duty that make it possible to enter an equal international dialectic that does not partake of a predatory logic of economy23 and that guarantees there is no exploitation of one by others. It is no coincidence that in the very introduction to the text, Fichte spells out possible reasons for the failure of his proposal: “Europe has a great advantage in trade over the remaining parts of the world, whose forces and products it takes for its own use without offering a viable counterpart a sufficient return payment. Every single European state, however unfavorable its own trade balance stands in relation to the others, still draws some advantage from this common exploitation of the rest of the world; they will never abandon the hope of improving the trade balance in their favor and thus drawing an even greater advantage. […] a relation like that which Europe has to the rest of the world—a relation grounded neither in Right nor in fairness—cannot possibly continue”24. Implicit in this passage, but very clear, is the complaint against colonialism. On the one hand, modern Europe, in the constitution and consolidation of national states and in the perspective of alliances and agreements, is recovering an original dimension of universality that it lost with modern fragmentation. According to Fichte, the “international” trade in Europe, has always existed, or at least did exist well before modern national states were formed. This particularization, however, should be seen as progress towards guaranteeing law and rationality. The national State, therefore, is a stage in a process that goes beyond it. Fichte does not exclude the possibility of a broader universalization, which should happen in terms of law and mutual recognition: a world union of closed states where the free movement of knowledge and scientists is allowed implies that no State needs to use knowledge and technology to gain an advantage over others.

23 24

Furlani (2005). GA I, 7, 43.

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III. Fichte globally? Final considerations about the relevance of Fichte’s proposal Although the 19th century witnessed the instrumentalization of some of Fichte’s proposals in the direction of projects of a nationalist nature, in general Fichte’s texts were overlooked or scarcely considered. Only with the financial crisis of 2008, and the successive regional micro-crises, the importance of his proposals were rediscovered and gained unexpected resignification25. It is no coincidence that during the past decade, after years of silence, several new translations and pieces of research were published both in Europe and in the United States. The following examples show the effects of what Fichte would call commercial anarchy26 : the growth of the financial market totally disconnected from real production processes; the deregulation of the labor market, such as drivers of transportation or food delivery applications, the relocation of factories and industries to places where workers are in a weaker position and exploited through weak or non-existing labor laws. The plausible side of the closure of the State emerges in relation to the progressive disappearance of policy and law in relation to market requirements that always demand more openness, with ever fewer rules. Its advocates use terms such as “flexibility” to refer to the laws governing labor, or seek to soften the reality of the precariousness and insecurity that threaten the survival of the individual. Democratic institutions seem to succumb to the forces of international finance as well as the supranational institutions and alliances. It seems difficult to return legitimacy and power to political action through these institutions. While recognizing a demand for a more incisive intervention of political institutions against the voracity of a free market, in most Western democracies today, it would be impossible to admit capillary control, not only at the level of trade and work, which is common in countries such as China. On the other hand, the closure of borders, as demanded by nationalists worldwide, blocking the free movement of people, especially the great migratory waves, is not only highly problematic from an operational point of view, but is also against human rights. Fichte’s texts can be read as an incentive to think about the possibility of more respectful relations; of a freedom which is not merely the freedom to consume, buy and sell. On the other hand, in relation to developing countries, Fichte’s proposal may be more valid in concrete terms: even within a free market system, all those spaces that allow “closure” must be covered27 “shielding” fundamental rights and demands that open system presupposes for some of the members of that system. In these countries it is not enough to just expand the possibility of trading agricultural products or raw materials abroad; it is also necessary to carry out programs for the distribution of wealth and internal social development. Even with regard to basic subsistence, we 25

Hoffmann (2018). Rametta (2012), pp. 150 – 151. 27 Furlani (2005), p. 44.

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can take as an example the paradoxical increase in the price of rice in Brazil in 2020: the increase in demand from the foreign market, the rise in the dollar and all strong currencies during the moment of insecurity around the world meant that exporting was a better option for producers. Therefore, between March and August 2020, Brazil exported almost 100 % more than in the previous year28. The product, which is basic to feed the population, especially the poorest, began missing from supermarket shelves and prices rose. The government, in order not to intervene and at the same time guarantee the circulation of the product, decided to lower taxes on imports of rice from Asia. Fichte could not even imagine this possibility, which is anything but “rational”, nor could he, of course, conceive the ecological problems linked to global trade. Commenting on the contradictions of foreign trade, Fichte notes that what is absurd is not the idea of a trade closure, which means that each state should consume that which it produces within its borders, but rather the contrary, to our usual way of relating to foreign trade, demanding to consume the most exotic goods, coming from the remotest parts of the planet: those who claim that they cannot, due to the commercial closure of their state, obtain foreign goods would be similar to an oak that claims that it is not a palm tree29! Guaranteeing the fundamental rights of citizens, protecting the environment (in a creative interpretation of Fichte in which one could understand the environment as a primary good) and, above all, establishing internal peace – and international peace depends on the regulation of the economy, because, as stated by Fichte, going against a currently widespread position: “Conflicting trade interests are often the true cause of wars that have been given another pretext”30. “Different pretexts” are understood here as the export of the democratic model, religious wars, the fight against terrorism, and so on. Fichte’s text showed outdated elements even when presented to the Prussian finance minister. This is very much the case today. However, the current global situation presents problems related to the deregulation of trade that The Closed Commercial State anticipated even at that time. It is worth remembering, as proposed in this contribution, that the centrality of freedom, the heart of Fichtean philosophy, the importance of state political action to guarantee while at the same time to limit individual and commercial freedom. As a result of this limitation, states, as in the case of free individuals, who recognize each other, need supra-national institutions to regulate and guarantee their own freedom potentially at global level.

28

Information obtained at https://www.em.com.br/app/noticia/economia/2020/10/26/inter nas_economia,1198252/entenda-a-alta-do-preco-do-arroz-motivo-de-irritacao-para-bolsonaro. shtml,%20consulted%20on%2012/12/2020. 29 GA I, 7, 62, 101. 30 GA I, 7, 106, 156.

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References Fichte, J. G.: Foundations of Natural Right According to the Principles of the Wissenschaftslehre. Translated and with an Interpretive Essay by Anthony Curtis Adler. Fichte, J. G.: Gesamtausgabe der Bayerischen Akademie der Wissenschaften, hrsg. von E. Fuchs/H. Gliwitzky/R. Lauth/P. K. Schneider et al., frommann-holzboog, Stuttgart 1962 – 2012, 42 Bände. Fichte, J. G.: Review of Immanuel Kant, Perpetual Peace: a philosophical sketch, The philosophical forum, XXXII, 4, Winter, 2001. Fuchs, E.: Fichte im Geschpräch, Stuttgart-Bad Cannstatt: Frommann-Holzboog, Bd. II, 1978. Kant, Immanuel: Zum ewigen Frieden. Ein philosophischer Entwurf, Kants gesammelte Schriften, herausgegeben von der Preußischen Akademie der Wissenschaften zu Berlin, Berlin: De Gruyter, 1910 ff. (AA). De Pascale, C.: Vivere in società, agire nella storia. Libertà, diritto, storia in Fichte, Milano 2001. Rametta, G.: Fichte, Il Carroccio, 2012. Furlani, S.: Libertà economica e controllo politico. Lo Stato commerciale chiuso di Fichte, in: La società degli individui, 24, VIII, 2005/3, pp. 33 – 46. Fusaro, D.: Fichte e l’anarchia del commercio. Genesi e sviluppo del concetto di “Stato commerciale chiuso.”, Genova 2014. Nakhimovsky, I.: The closed commercial state : perpetual peace and commercial society from Rousseau to Fichte, Princeton 2011. Oncina, Coves F.: Para la Paz Perpetua de Kant y el Fundamento del derecho natural de Fichte: encuentros y desencuentros, in: Daimon. Revista Internacional de Filosofía, 9, 1994, pp. 323 – 340. Hoffmann, T. S.: Wirtschaft als System? Fichtes rechtsphilosophische Alternative zu einem neuzeitlichen Dogma, in: T. S. Hoffmann (Hrsg.), Fichtes Geschlossener Handelsstaat, Beiträge zur Erschließung eines Anti-Klassikers, Berlin 2018. Sabbatini, C.: La proprietà nello Handelstaat, texto apresentado na reunião da Rete italiana degli studi su Fichte. texto apresentado no XVI Seminario da Rete Italiana per la Ricerca su Fichte, Accademia Toscana di Scienze e Lettere “La Colombaria”, Firenze 2017. Spalletti, S.: Elementi di pensiero economico nello Stato commerciale chiuso di J. G. Fichte, Working Progress, 49 DiSSE, University of Macerata, 2017. Zoeller, G.: Von der Nationalökonomie zum ökonomischen Nationalismus. Fichtes Politikkonzeption im Geschlossenen Handelsstaat, T. S. Hoffmann (Hrsg.), Fichtes Geschlossener Handelsstaat, Beiträge zur Erschließung eines Anti-Klassikers, Berlin 2018.

Part II. Cosmopolitanism in Contemporary Philosophy

Shaman cosmopolitanism: Amerindian resistance and perspectivism1 By Bethania Assy and Rafael Rolo “No conception of the end of the world is more imminent than when a division takes place between a world of theirs and a world of ours, both sides trying to guess what the other is doing. This is an abyss, this is a falling”2. “Every time the sky starts to tremble and is about to crack, the shamans send their xapiri right away to strengthen the celestial structure. Without this, the sky would have already fallen a long time ago”3.

Opening remarks The idea that the present time might be depicted as that of one long falling, or as that of the imminent end of an era, which would be consummated by the sudden completion of a falling (a cataclysm), is an impression that runs through Amerindian thought. Ailton Krenak and David Kopenawa, referenced in the statements that function as the exergue of this essay, are two leaders of their communities located, respectively, on the margins of the Rio Doce in the Southeast region of Brazil and on the surrounding area of Mount Watoriki, close to Brazil’s north-western frontier with Venezuela. This impression traverses Amerindian thought geographically, but also, once considered the different intensities, politically, ethically, and philosophically4.

1 The text was originally written in English. The authors draw, as much as they can, from the original references. Every translation found either on the body of the text, or on its endnotes, is to be attributed to the authors alone. As for the references included on endnotes, the authors decided to use the untranslated originals. 2 Krenak (2019), p. 62. 3 Kopenawa/Albert (2015), p. 547. 4 In what comes these notions are condensed in asserting the deep connection of the three dimensions (politics, ethics, and philosophy), in that it is not possible to have one, without the others, especially if one asserts the possibility of a neutrality or of a neutralization of one of these aspects in favour of the others.

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Even though this notion of a falling might not be shared by white men5-6, it might be nevertheless considered as a precise description of the present time. The Amerindian idea of falling is perhaps irreversibly connected to that of the Anthropocene. Perhaps, it would be the Anthropocene’s “flip-side”. A time when time itself is in short supply. Not that one simply “lacks” time per se, for time is not properly owned by no one in particular in order to simply “lack” to anyone, but Amerindian thought surely thematizes the fact that this generation is defined by this abyss of an urgency and the imminence of a catastrophe (which is neither unannounced nor unprecedented7) towards which humankind as a whole is heading more or less blinded/ steered by the notion and the promises of progress. More than five centuries since the colonizers set foot on American soil, this event which marks the start of a long process of spoliation, disease, famine, the indignity of the people that lived in the so-called New World, the earth itself, as long as it’s understood as living matter, agonizes. Even though the white modern cosmopolitan individual might think that he or she can withstand the worst of environmental conditions, Amerindian populations know for a fact that there simply is no place to hide. Left with no place to hide, and no time to spare, capitalism has permeated the pores of every social, individual, communal, and personal tissue, in the manner that the impression of technological ubiquity and acceleration of contemporary life is irrevocably connected to its other, i. e. an impression of desperation with the globality and imminence of the environmental catastrophe just around the corner. Contemporary time is depicted by Amerindian thought as a falling. This does not mean, though, that Amerindian thought simply poses this catastrophe as a fait accompli. On the contrary, American indigenous and traditional populations are resisting for 500 years, and they don’t seem to grow weary of this fight. Ailton Krenak, when asked about the results of the Brazilian 2018 general elections and the immi5 One should anyway ask if so-called “white men” might be actually defined by their/our obliviousness to such a condition? This “falling” which Amerindian thought draws attention to is by no means a Heideggerian Verfall or Abfall (Heidegger (1992), p. 203), nor would it be any close to the Benjaminian perspective of the Angelus Novus (Benjamin (1985)). This falling needs to be understood in its uniqueness. A differential analysis of these conceptions, though, cannot be further developed here, but is a challenge the authors aim to undertake in the near future. 6 It might be said that every anthropology is designed to depict the so-called man through the eyes of the native. Isn’t it, as Patrice Maniglier suggests after departing from Godelier’s example, the higher promise of anthropology to “nous renvoyer de nous-mêmes une image où nous ne nous reconnaissons pas?” (Maniglier (2005), pp. 773 – 774) This indicates that the group subject of the analysis also builds a comprehension of their others and that it is this depiction (i. e., this confrontation with this understanding of us that is nevertheless absolutely foreign to ourselves) that needs to be properly at stake in a “true anthropology” (Viveiros de Castro (2015), p. 21). That is, it is not only the academic expert that is trying to make sense of the natives, but the natives themselves are in no less of an effort to make sense of the white men’s idiosyncrasies. 7 The Yanomami tradition, for example, understands that white men are the heirs of the first men who were decimated in the last event (Kopenawa/Albert (2015), pp. 195 – 196).

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nence of current genocide being perpetrated by the Brazilian government against indigenous populations (a fact that has surely been aggravated by the current Covid-19 pandemic), said precisely this: “Indians have been resisting for 500 years, I am rather worried about white men and how they are going to escape from this one”8. Following Krenak’s statement, it is not entirely correct to say that indigenous people resist the way they “can”. They resist simply because they “are”. It is their mode of being, to “expand their subjectivity”, as Krenak himself has put9. Their resistance is their way of being in the world. To expand their subjectivity (in such a way that one might be right to point out the abuse of calling the Amerindian as a “subject“) means among many other things to find new lights of flight (and of fight) against the violent and assimilating intentions of white men. As the impression of the impending environmental cataclysm makes its indelible entrance in the world stage of white men, the attentions of the world turn to the resisting lessons of Amerindian thought, as well as Amerindian thought insists (and this is not new phenomena) on reaching out to its other. Kopenawa and Albert’s effort to tell the words of the Yanomami shaman in the language of white men is as much telling as Krenak’s powerful speech before the Brazilian Constituent Assembly, in 1987. They are not trying simply to dispute the colonizing narrative but to make white men expand their subjectivities as well. Their decolonizing intentions are radical in that Krenak and Kopenawa point in the direction of a different concept of humanity, one that does not build frontiers but encourages the transgression of thresholds, one that is not fixed in extensive alternatives (the “either … or …” formula), but in the production of becomings (the “and … and … and …” formula)10.

8

Krenak (2019), p. 31. Krenak (2019), p. 30. 10 “Becoming” is one of the key-concepts of deleuzean philosophy, appropriated by Viveiros de Castro. To try to define it in such limited space would merely frustrate the very notion of a philosophical concept according to Deleuze, to whom a concept, inasmuch as a universal, is an infinite process or form after which more and more dislocations are produced. In order to present it in a more adequate manner, cfr. Deleuze’s own words: “Les devenirs ne sont pas des phénomènes d’imitation, ni d’assimilation, mais de double capture, d’évolution no parallèle, de noces entre deux règnes. Les noces sont toujours contre nature. Il n’y a plus de machines binaires : question-réponse, masculin-féminin, homme-animal, etc. Ce pourrait être ça, un entretien, simplement le tracé d’un devenir. La guêpe et l’orchidée donnent l’exemple. L’orchidée a l’air de former une image de guêpe, mais en fait il y a un devenir-guêpe de l’orchidée, un devenir-orchidée de la guêpe, une double capture puisque « ce que » chacun devient ne change pas moins que « celui qui » devient. La guêpe devient partie de l’appareil de reproduction de l’orchidée, en même temps que l’orchidée devient organe sexuel pour la guêpe. Un seul et même devenir, un seul bloc de devenir, ou comme dit Rémy Chauvin, une « évolution a-parallèle de deux êtres qui n’ont absolument rien à voir l’un avec l’autre ». (…) Les devenir, c’est le plus imperceptible, ce sont des actes qui ne peuvent être contenus que dans une vie et exprimés dans un style” (Deleuze/ Parnet (1996), pp. 08 – 09). 9

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Amerindian thought, following Clastres’ insight (1974, 161 – 186) and Deleuze and Guattari’s (1980, 441 – 442) developments, aims at the conjuring/anticipation of the State. To postpone the best it can the concentration of power into one social apparatus means both: (a) to produce the social means that prevent every concentration of power in the hands of one entity (be that human or not) and (b) to resist every attempt coming from such a power that claims to sovereignty (again, human or not). Taking Clastres’ lesson to the limit, the conjuration of the State-like organization by indigenous societies is no less the conjuration of a certain conception of subjectivity. Krenak says that indigenous communities resist by expanding their subjectivities, but one would be only justified to ask if this “expanded mode” of subjectivity isn’t a line of flight (and of fight) against the capture of assujetissement (subjugation)11 and a different thing altogether when compared to the Western conception of the subject12, that is, another incarnation of the “one”, as Clastres puts it (1974, 184 – 186). Certainly, this “expanded mode” may look as “expanded” to white men, but if one considers the perspective of the indigenous communities, the mode of being of white men may be only too “narrow”13. Their struggle and resistance are a fight for their mode of being, against the narrowing down of the multiplicity of Amerindian perspectivism into the evil, the State, the one… the subject. This narrowing down might be another name for the falling of the present time. How do Amerindian communities resist this narrowing/falling? They “conjure” the One, as Clastres put it. Their mode of being is nonetheless a mode of resistance. Their resistance is depicted by themselves as a movement of “pushing the sky

11 The concept of “assujettissement” (subjugation) is a particularly intriguing one. In order to obtain more coordinates for understanding it, see particularly: (a) Deleuze/Guattari (1980) p. 570 e ff., and (b) Foucault (2000), (1980). 12 Clastres’ analysis of the so-called “Western conception of the subject” is deeply anchored in the notion of division of labour, which verticalizes social relations and constitutes different social strata, such as: Master-Slave, Sovereign-Subject, Capital-Proletariat and the like. “La division majeure de la société, celle qui fonde toutes les autres, y compris sans doute la division du travail, c’est la nouvelle disposition verticale entre détenteurs de la force, qu’elle soit guerrière ou religieuse, et assujettis à cette force. La relation politique de pouvoir précède et fonde la relation économique d’exploitation. Avant d’être économique, l’aliénation est politique, le pouvoir est avant le travail, l’économique est une dérive du politique, l’émergence de l’État détermine l’apparition des classes” (Clastres (1974), p. 169). 13 “Visitando uns aos outros entre suas cidades, todos os brancos acabaram por imitar o mesmo jeito. E assim as palavras das mercadorias e do dinheiro se espalharam por toda a terra de seus ancestrais. É o meu pensamento. Por quererem possuir todas as mercadorias, foram tomados de um desejo desmedido. Seu pensamento se esfumaçou e foi invadido pela noite. Fechou-se para todas as outras coisas. Foi com essas palavras da mercadoria que os brancos se puseram a cortar todas as árvores, a maltratar a terra e a sujar os rios. Começaram onde moravam seus antepassados. Hoje já não resta quase nada de nada de floresta em sua terra doente e não podem mais beber a água de seus rios. Agora querem fazer a mesma coisa na nossa terra” (Kopenawa/Albert (2015), p. 407).

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away”14, of slowing down the freefall with “colorful parachutes”15. To resist the freefall with colorful parachutes and to push the skies back up and to sustain its weight, Krenak and Kopenawa agree that there must be preserved the place of the shaman. If the shamans are no more, then there is nothing holding the skies, and the collapse of the cosmos is inevitable. The Amerindian shaman is this entity that acts as a diplomat in Amerindian Cosmo-politics in that the shaman is capable of assuming different perspectives through the production of different becomings16. This essay aims to discuss the shaman cosmopolitism as an index of the Amerindian ontology of resistance. It is divided into three sections. The first section shall function as a brief introduction to Viveiros de Castro’s contribution to Americanistic anthropology, with a longer consideration of some of his key concepts, which are essential to the analysis of the complex Amerindian conception of humanity. The second part shall analyze the position of shaman’s cosmopolitism in Amerindian anthropology, drawing some major consequences of the differences between the shamanic conception and Western cosmopolitism17. Lastly, a brief conclusion shall question if shamanic cosmopolitanism could be understood as an innovative posture in epistemology and politics, and suggest some of the reasons why an agenda of resistance needs to consider the Amerindian thought.

14

Krenak (2019), p. 28. Krenak (2019), p. 30. 16 “Quando um xamã ativa um devir-jaguar, ele não ‘produz’ um jaguar, tampouco se ‘filia’ à descendência dos jaguares: ele adota um jaguar; ele coopta um jaguar – ele estabelece uma aliança feline” (Viveiros de Castro (2015), p. 189). 17 While considering a broad reference to “Western Cosmopolitanism”, it is necessary to notice that there are many different and competing philosophical conceptions of “cosmopolitanism“, each of which draw at some point after Kant’s seminal contribution (cfr. Perpetual Peace). A much deeper analysis of these conceptions is indeed demanded. Such an endeavour, although, would fall outside the limited purpose of this brief essay. It has been decided therefore to promote a tabula rasa of the many conceptions by way of the generic expression “Western Cosmopolitanism”. Such a conscious strategy is recommended for yet another reason, though. Viveiros de Castro, for one, states that Amerindian thought is not simply an object of study in the hands of privileged anthropologists, but is also the vector through which the natives develop a (counter)anthropology of the anthropologists. This (counter)anthropology is prone, as much as any “Western” anthropology, to its generalisations and simplifications. Drawing from such an inspiration, noticing that such a tabula rasa is nonetheless a symbolically violent move, it should be considered nevertheless justified if it has evoked some kind of academic discomfort on the reader. May this discomfort elicit a projection on the part of the colonizer over the strange conclusions such (counter)anthropology (this “real” Anthropology, according to Maniglier and Viveiros de Castro, as already referenced above) would bring about. 15

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I. Viveiros de Castro’s multinatural perspectivism: A few coordinates “It is not, as timely recalled by Derrida (2006), about preaching the abolition of every frontier which unitesseparates ‘language’ and ‘world’, ‘people’ and ‘things’, ‘us’ and ‘them’, ‘humans’ and ‘non-humans’ – the reductionist easiness and naïve monism are just as out of the question as the fusional ghosts –; but to ‘n-reduce’ to ‘un-precise’ this frontier, contorting its divisor line (its successive dividing and parallel lines) in an infinitely complex curve. It is not about erasing the outlines, but to bend them, to thicken them, to twist them, to excite them, to fractalize them”18. “The point of view is in the body, as Leibniz says”19.

Viveiros de Castro, one of the most prominent scholars to study the Amerindian communities, especially the case of the Araweté, presents a radical critique of Nature/ Culture dichotomy20. A dichotomy that, according to so-called “modernity”, is itself naturalized and, therefore, rests a priori unavailable to meaningful scrutiny. The theoretical and pragmatic shift that comes as consequence from the analysis of Amerindian thought, precisely due to its decolonizing purposes, deserves to be productively entangled with the modes of thinking and of living of the Amerindian people, whose (counter-)anthropology is deeply and radically ethical. This decolonial approach may offer a more powerful comprehension of the Amerindian cosmic ethic that Viveiros de Castro both presupposes and develops in many of his writings. As Viveiros de Castro suggests, a radical ethnographic critique “(…) demands the dissociation and redistribution of the attributes subsumed in the two paradigmatic series that traditionally oppose one another under the labels of Nature and Culture: universal and particular, objective and subjective, physical and moral, fact and value, given and developed, necessity and spontaneity, immanence and transcendence, body and spirit, animality and humanity, and many others”21.

Dissociation and redistribution are the essential dynamics that suggest the overcoming of the traditional models of relation imposed by modern thought, which is the form of the opposition. To dissociate and to redistribute the terms of traditional oppositions implies the revealing of other possible forms of relation entirely different from the mere antagonism of binary terms. Viveiros de Castro departs from dualities, it is true, but these dual terms do not relate to one another in the form of opposition. While the binaries tend to assimilate every difference into a homogeneous criterion 18

Viveiros de Castro (2015), p. 28. Deleuze (1988), p. 16. 20 See: Assy/Rolo (2019). 21 Viveiros de Castro (2002), p. 346. 19

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that allows the opposition to take place, Viveiros de Castro’s dualities constitute the means for the proliferation of radical differences. The dual is an index of radical multiplicity, reaching far beyond any limitation posed by the logic of opposition and binaries22. The Araweté mode of life is constantly (de)codified by Viveiros de Castro following two essential anthropo-philosophical concepts of his, such as perspectivism and multinaturalism. Viveiros de Castro, in a sense counterintuitively, suggests an Amerindian condition by expanding the Araweté system of thought and their mythologies to other indigenous communities. It is a prolific hypothesis and even though it cannot help but be dislocated and resignified every time a different indigenous community is precisely considered, his presupposition is the basis for the building up of a better understanding of them, through the thematization of determinate points of singularities (such as the role of the shaman and that of the warrior or the deep relationship between the activity of hunting/waging war and the practice of the sacrifice) from which the differences may reverberate in multiple directions every time. Inspired by Roy Wagner (1981), the indigenous social code is constantly inserted in a new register, which consummates decodification itself as an anthropological goal. By inventing a culture to the Indian (this absolute other concerning the European) departing from his paradigms, the anthropologist is prone to accept the fact that the Amerindians might invent and attribute a culture to the anthropologist as well, following their categories. Anthropology, this discipline that studies man “as if” a culture really existed23, adopts necessarily the premise of equivalence of different cultures, not to assert a naive and out-of-order form of relativism, one that is incapable of considering the potency of the absolutely different but to highlight the relationship itself over its own terms by giving due attention to the asymmetry between different perspectives. It is a premise to this anthropology, then, that one needs to seriously consider the fact that the point of view of the anthropologist concerning the native, and that of the native, regarding the anthropologist, are incommensurable to each other. This anthropology from Roy Wagner and Eduardo Viveiros de Castro aims at proliferating the differences instead of promoting their homogenization in some sort of presupposed (and falsified) general category shared by all humans. At first, Viveiros de Castro uses the term multinaturalism to assert a contrast between Amerindian thinking and that of modern multiculturalism. After all, while multiculturalisms: “(…) find support in the mutual implications between nature’s unicity and the multiplicity of cultures – the first being warranted by the objective universality of bodies and substance, while the second is generated by the subjective particularity of spirits and meaning –, the Amerindian conception supposes, quite, on the contrary, the unity of spirit and the diversity

22 23

Viveiros de Castro (2002), pp. 347 – 350. Wagner (1981).

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of bodies. Culture or the subjective form the universal; while nature or the objective form the particular”24.

Contrary to what may seem, however, the concept of multinaturalism does not simply represent an asymmetric but antithetic position concerning that of multiculturalism. While reading Viveiros de Castros’ hypothesis one needs to keep at heart that it is not simply about a traditional opposition. Both figures relate to one another in the form of an essential asymmetry that may not be reduced or merely disregarded. The asymmetry is the index to the multiplicity and the multiplication of differences between the perspectives situated on one paradigm, or the other. To paraphrase Roy Wagner’s lesson (1981), whichever mistake the anthropologist makes regarding the natives is incommensurable to the natives’ mistakes regarding their understanding of the anthropologist. Each cannot help but proliferate their own errors regarding its Other. To affirm that both perspectives are asymmetric to one another implies the recognition, paradoxically as it may appear, that both the anthropologist and the native share the same mental structure. That is, that the way the Amerindian thinks is not wholly different from the forms of occidental-European thinking. Perspectivist asymmetry is “not a cultural matter, and even less an issue of mentality”25. To take this premise seriously, one must first consider the background that allows such a perspectivism to take place. In the precise case of Viveiros de Castros’ Amerindians, this background is constituted by their conception of humanity, which is a central element that, however, shared universally, conforms differently following each perspective. Humanity in these terms constitutes an encompassing plane of consistency, that is, of a “still-not-differentiated” mass full of virtualities after which different natures may individuate themselves. According to the perspectivistic thesis, “every subject to which a point of view is attributed will therefore be a subject, a spirit; better still, where a point of view is located than there will be situated the position of the subject”26. The intriguing question being precisely the way this perspectivistic attribution is processed, once it is acknowledged that, to an Araweté, the “originary condition common to humans and animals is not animality, but humanity”27. According to multinaturalism, every being is a mode of all-encompassing humanity. That is, every being sees themselves and their peers as “humans”, while the others are either prey or predators (the only exception being the spirits that are predators par excellence). Jaguars see other Jaguars as humans. Wild hogs see other wild hogs as humans. Jaguars have their “beer” (which the Araweté may call “blood”), as much as peccaries have their “shrines” (which the Araweté may refer to as “mud”). These 24

Viveiros de Castro (2002), p. 349. Viveiros de Castro (2002), p. 398. 26 Viveiros de Castro (2002), p. 373. 27 Viveiros de Castro (2002), p. 355. 25

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asymmetries are replicated for every other individual, endlessly. White men, as well as other tribes, are depicted by the same process. Humanity is the primordial condition and every being was human in the first days when the earth was young. Differentiation along the eons has made it very hard for different species to understand each other. Difficult but not impossible, and this possibility is presented (and incarnated) by the shamans and the warriors. The human, according to an Amerindian, as this sort of background for every future differentiation, consists of the “not-yet-differentiated” of every animal28. Every being is imbued with human virtuality according to the Amerindian conception, while the actualization processes of this virtuality are both differentiated and differentiating, on a case-by-case level. Because of this a priori human condition of every being, the encounters in the Jungle are mediated by a sort of language that, notwithstanding, is not comprehensible to everyone. The shaman, for example, is someone who can establish “interspecific dialogues”29, as will be dully considered later on the next topic. There is no synonym in any Amerindian language for the Western notion of Anthropos (#mhqypor). The Araweté call themselves bïde, which does not mean a universality, but the particular condition of the Araweté30. Bïde means “us”, “the people”, or simply “the Araweté”, and it does not point to an essence of a somewhat sort. Bïde is simply contraposed to the others, to the enemies (awin). Bïde and awin each mark an “enunciative position”, they exert a pronominal function31. According to this “pronominal function”, the Araweté understand that each species 28

The Yanomami share this general Amerindian condition, as is proven by Kopenawa’s shamanic words: “Há muito e muito tempo, quando a floresta ainda era jovem, nossos antepassados, que eram humanos com nomes animais, se metamorfosearam em caça. Humanosqueixada viraram queixadas; humanos-veados viraram veados; humanos-cutia viraram cutias. Foram suas peles que se tornaram as dos queixadas, veados e cutias que moram na floresta. De modo que são esses ancestrais tornados outros que caçamos e comemos hoje em dia. As imagens que fazemos descer e dançar como xapiri, por outro lado, são suas formas de fantasma. São seu verdadeiro coração, seu verdadeiro interior. Os ancestrais animais do primeiro tempo não desapareceram, portanto. Tornaram-se os animais de caça que moram na floresta hoje. Mas seus fantasmas também continuam existindo. Continuam tendo seus nomes de animais, mas agora são seres invisíveis. Transformaram-se em xapiri que são imortais” (Kopenawa/Albert (2015), p. 117). 29 Kopenawa, for example, states that the shaman is that who can speak (for the shaman has learned the way of the elders) the “words of the spirits”, while someone not familiar with the xapiri may only speak the words of ghosts. This differentiation between the valued “spirit” and the devalued “ghost” is worth considering thoroughly at another opportunity, for one cannot help but to approximate the Yanomami division to the one presented by Derrida in Spectres de Marx ((1993), p. 27). 30 In fact, “Araweté” is a name attributed to them by white men. An Araweté does not call himself and his relatives an “Araweté”. According to Viveiros de Castro: “Como várias outras sociedades amazônicas, os Araweté não objetificam o coletivo a que pertencem por meio de substantivos de tipo etnonímico, reservando-os para os outros, isto é, precisamente, para os inimigos (awin)” (Viveiros de Castro (2002), p. 271). 31 Viveiros de Castro (2002), p. 271.

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sees themselves as humans, while the others do not share the same humanity. These “others” are not merely “non-humans”. Instead of simply assuming the non-humanity of others, Amerindian predatory ontology focuses on conceiving every being according to their position in the cosmopolitics of predation (hunters and prey). Western anthropology is therefore not symmetric or equivalent to that of the Amerindian. In this sense, Amerindian multinaturalism answers to a much more radical imperative than most European anthropologies would be willing to acknowledge. The Western #mhqypor is an all-too narrow concept for an Araweté who, no matter what he sees or what he faces, can only relate to other beings socio-politically. After all, in a world where “everything may be human, nothing is unequivocally humane”32. Accordingly, Viveiros de Castro attributes two different conceptions of humanity to the Amerindians: (a) it is a plane, and (b) a tropos. These conceptions might seem paradoxical to one another. Nevertheless, the paradox between (a) humanity common to every being that inhabits the earth (it covers the entire plane of consistency) and (b) this other notion of humanity that is always at play and never fully secure and assured is merely apparent. After all, asserting that every being has a human background does not mean that each and everyone perceives themselves and the others, nor is perceived by themselves and these others, as humans all the time. Humanity is not a taken for granted condition, for it may only be peremptorily asserted following an encounter of the individual with its enemy. It needs this scenario where the differences of perspectives can take place and be expressed accordingly. While every individual is first and foremost a body with an access to a certain perspective, any individual may occupy the human position or be thrown in the “not-human-anymore” condition (which means the body’s demise). This predatory ontology is both epistemological and an Amerindian ethic. Developing on these notions, “[P]erspectivism is not relativism, but a multinaturalism. Cultural relativism, multiculturalism, suppose a diversity of subjective and partial representations reflecting on the external surface of nature conceived as totality and unity, indifferent to each representation. The Amerindians draw the opposite conclusion: a representative unity or a purely pronominal phenomenology, indifferently deployed over a real diversity. One and only ‘culture’, multiple ‘natures’; constant epistemology, variable ontology – perspectivism is a multinaturalism because a perspective is not a representation”33.

This pronominal phenomenology is essential to the real assessment of Viveiros de Castro’s concept of human and humanity. It points to a third notion of humanity that is present in his Anthropology, that is, the notion of humanity as a topos. By this third notion, it is meant the fact that even though every being has the possibility of asserting

32 33

Viveiros de Castro (2017), p. 377. Viveiros de Castro (2002), p. 379.

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an “I” (culture), this does not mean that everyone, in any case, is at all free from the menace of becoming “the second person” of a predator34. The predatory act presupposes a certain form of capture in which the death of the pray is prefigured by the fact that it is incapable of assuming the active/dominating position (the position of the “sujet d’énonciation”), being relegated to that of a passive/dominated condition (as a “sujet d’énoncé”). It is an “abnormal context in which the subject is captured by another cosmologically dominant perspective, where it is a ‘you’ to a non-human perspective, Super-nature is the form assumed by the Other as the Subject, implying the objectification of the human ‘I’ as a ‘you’ to this Other”35. This predatory ontology, that is, this cannibal metaphysics (since every being is originally human), follows the conception that absolutely every relation is a matter of social emplacement. Its pronominal function demands a topology to be drawn. That is, it demands an asymmetrical topic which derives from as much as it levels the ground to a certain form of animism applied to every relevant being (“relevant”, that is, to this predatory ontology). The Amerindian humanity, as depicted by Viveiros de Castro’s anthropology, is not a simple and one-dimensional conception, but a complex concept that has its own forms of expression. It does not suffice to say that Amerindian humanity is universally distributed among species which Western thought considers to be plain “nonhumans”. To an Amerindian, the human position is a vicarious position in the sense that one needs to be from time to time reassured of it by its others (and preferably by the occasional enemy himself). It is a multifarious concept, in which it is possible to distinguish at least three dimensions: (a) humanity as a plane of all-encompassing virtuality available to every individual in Amerindian cosmopolitics, (b) humanity as a tropos or as a transient condition bound to be lost at every encounter with others, and (c) humanity as a pronominal topos supported by the asymmetries of the struggles faced (it construes an asymmetrical topologic). These dimensions do not function diachronically to one another, but synchronically. Each conception of humanity is the threshold to the next. What makes this concept so hard to grasp is the fact of its dynamics. The complexity of the Amerindian’s conception of humanity, which implies the distinction between Culture and Nature, obeys a specific linguistic trait, according to a “purely pronominal representative or phenomenological unity”36. The pronominal structure seems to be the key to unlocking the secrets to Amerindian multinatural perspectivism. According to Viveiros de Castro, the “culture assumes the form of the pronoun-subject ‘I’; nature is the form par excellence of the ‘nonperson’ or the object, indicated by the personal pronoun ‘he’”37. This pronominal structure in34

Viveiros de Castro (2002), p. 397. Viveiros de Castro (2002), pp. 396 – 397. 36 Viveiros de Castro (2002), p. 379. 37 Benveniste (1966a), p. 256.

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dicates the ever-present possibility that the supposed “culture” of a certain individual might be the assumed “nature” of another. This pronominal structure is an important dimension of analysis and critique of the European model of thought. If to an Amerindian the relation between nature and culture is seriated indefinitely (culture [I] – nature [he] – culture [I’] – nature [he’] – culture [I”] – nature [he”] – etc.), Western thought, on the other hand, possess a much more static conception of the relationship between both terms (Nature and Culture). On the antipodes of the immanent dynamics of the indigenous conception, Western thought proposes a transcendent fixity. This difference is paramount to the understanding of the asymmetries between Western cosmopolitism and Amerindian cosmopolitism, as will be presented on the next topics. The pronominal positions of the “I” (culture) and the “them” (nature) are mediated by the constant possibility of the position of the “you” (designated as “Supernature”, a conception which aims to achieve a contrast with the notion of “Superego”), which both presupposes and is presupposed by Amerindian predatorial ontology. According to Viveiros de Castro, the individual who “responds to a ‘you’ said by a non-human accepts the condition of being its ‘second person’, and as this individual tries to reassume his individuality by stating ‘I’, he will only be able to do so already in the non-human condition”38. The defense of one’s humanity, before the menace of a given predator, is only possible through the continuous affirmation of one’s humanity39. This defense expresses itself in much more than mere symbolism. The individual needs to constantly “assert his own point of view; when this individual says that he too is a person, he means nothing else than to state that the person is the one who says ‘I’ and not the other: the true person here is I”40. It is interesting to see that the Amerindian communities relate the phenomenon of death with a procedure resembling a capture41. After all, to die means not only to be permanently overdetermined by the enemy but more importantly, it means that the capture creates the pray, it creates that which it will capture. The hunt can only be 38

Viveiros de Castro (2002), p. 397. The Yanomami shaman suffers many deaths throughout their lives. Every time one of these events is about to come about, the Yanomami usually describe it as the experience of “becoming other” (Kopenawa/Albert (2015), p. 143). 40 Viveiros de Castro (2002), p. 397. 41 The predator’s exhortation could be related to the one proffered by the althusserian policeman (“hé, vous, là-bas!”). In each case, there is a different form of capture at play. In each case, nevertheless, there is a death. The difference between one and the other, however, is essentially the fact the Amerindian encounter between hunters and prey occurs on the margins of the tribe, while the encounter of the State’s agent and a regular citizen is a normal, normalized, and normalizing mechanism at the heart of bourgeois dynamics and modern State’s power (“law and order”). The State depends on the predatorial subjectivation in order to assert its very existence, producing living-dead and quasi-suicidal citizens all the time. Indigenous societies, on the contrary, predation/capture lays on the margins of their communal organizations (there is a limit, a limes in the geographical sense). 39

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successful on the condition that the prey is unable to escape the ontological condition imposed by the hunter. The risks associated with these dangerous encounters are the reasons why some essential functions, within the context of Amerindian societies, are served by the shamans and warriors. Both are interconnected for “the war is the continuation of shamanism by other means”42. Nonetheless, a fundamental distinction remains between the shaman and the warrior, because while the shaman is known as the “future food” for the spirits, the warrior is considered an “anticipated god” between the living43. Still according to Viveiros de Castro, “if the position of the shaman about the dead is analogous to the killer [the warrior] concerning the deity, the first is to the living what the second is to the dead. Amerindian society would be impossible without the peye [the shaman]; but Amerindian masculinity would be unthinkable without the figure of the maropï’nã [the warrior]”44. The shaman is a gathering figure regarding his peers, while the warrior is responsible for a certain form of dispersion45. Amazonian shamanism is defined as the “ability that certain individuals possess to deliberately cross bodily barriers and adopt the perspective of allospecific46 subjectivities, as a way of administering the relationships between these and humans”47. The shaman is a diplomat in Amerindian cosmopolitics. If every non-human has an invisible prosopomorphic48 side, the shamans can conform their own body to animal and spiritual sensibilities. That is, they master the ability to assume the other’s perspective. “Seeing non-human as these beings see themselves (i. e., like humans), shamans can assume the role of active interlocutors in the trans-specific49 dialogue; most important of all, though, 42

Viveiros de Castro (2015), p. 172. Viveiros de Castro (2002), p. 282. 44 Viveiros de Castro (2002), p. 282. 45 A Yanomami warrior caught in the homicidal state of “õnokae” not rarely runs away from any gathering of people in order to escape the vengeance of the victim’s relatives (Kopeanawa/Albert (2015), p. 440). 46 The term “allospecific” is often employed by Viveiros de Castro. And, despite its esoteric semblance, a brief reference to its etymology may make its meaning clearer. Allospecific is a compound word, built on the conjunction of the suffix “allo-” (that which is referred to the other, as opposed to “auto-”) and the core “-specific” (which is that related to the species, or to a particular being or condition). The term “allospecific subjectivities”, therefore, indicates that which is entirely referred to the condition of the other, and not of the self. 47 Viveiros de Castro (2002), p. 358. 48 “Prosopomorphic” is another term usually deployed by Viveiros de Castro. Again, in order to clarify its meaning, one needs to pay some attention to its etymology. The “prosopon” is the word of Greek origin that refers to the “person”. Prosopomorphic, which is another compound word built from the addition of “prosopon-” (person) and “-morphic” (form), then, relates to the “form of the person”. 49 The “transespecific dialogue” is simply the dialogue between different species (humans and non-humans). A transespecific dialogue would be the one between an Araweté and a Jaguar or the spirits, for example. 43

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is the fact that shamans can come back to their original state and tell the story they learned on their experience, which is something that the laymen hardly would be managed to achieve. The encounter or the perspective’s interchange is a dangerous process and a political art – a sort of diplomacy”50.

Representing much more than a mere honorific position in Amerindian communities, the shaman is above all an attitude or a way of acting (one could say it consists of an activist), enveloping, as Viveiros de Castro points out51, a form of knowledge that is positioned in the antipodes of western knowledge. If according to western standards, “to know means to objectify”52, shamanism is grounded both on the need for personification and on the claim of a universal intentional attitude, which shifts greatly the relations of the those considered “humans” concerning the so-called “non-humans”53. “To be precise (…) I would say that we are before an epistemological ideal that, far from trying to reduce ‘the environmental intentionality’ to zero to achieve an absolutely objective representation of the world, it claims the opposite: true knowledge intends the revelation of the maximum of intentionality, by the way of a systematic and deliberate process of ‘abduction of agency’54. I stated above that shamanism is a political art. Now, I say that it is a political art”55.

Drawing conclusions from the comparison between the shaman’s rattle and the Ockham’s razor, which is a rational model that basically defines western thought, Amerindian thinking is designed to proliferate differences (to multiply the multiple). It is wholly inappropriate to speak of an epistemological “discontinuity” when it comes to Amerindian societies, for to them “interpretative success is directly proportional to the order of intentionality that one can attribute to the object or the noema”56. Where every entity is a bearer of a determinate intentionality, every object is first and foremost a “subject incompletely understood”57.

50

Viveiros de Castro (2002), p. 358. Viveiros de Castro (2002), p. 358. 52 Viveiros de Castro (2002), p. 358. 53 Viveiros de Castro (2002), pp. 358 – 359. 54 Gell (1998). 55 Viveiros de Castro (2002), p. 359. 56 Viveiros de Castro (2002), p. 359. 57 Viveiros de Castro (2002), p. 360. 51

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II. Shamanic cosmopolitanism and a sketch-comparison with western cosmopolitism “Definitely we are not the same, and it is wonderful to know that each and every one of us here is different from the next one, just as constellations. The fact that we can share this space, that we are together traveling does not mean that we are the same; it means exactly that we are capable of attracting each other through our very differences, which should guide our life script. To have true diversity and not this sort of humanity which obeys the same protocol. Up until now, this protocol has been a way of homogenization and a form taking away the joy of being alive”58.

This all too brief introduction of the Amerindian thought structure, through Viveiros de Castro’s perspectivistic anthropology, Kopenawa and Albert’s shamanic narrative, and Krenak’s powerful speeches, give a sense of the special condition of Amerindian Cosmopolitism concerning the Western version of it. In this section, these differences should be analyzed with due care so that the concept of “Shamanic Cosmopolitanism” shall be advanced and established to allow further consideration. Cosmopolitanism, broadly speaking, is a notion usually associated with Kant’s Perpetual Peace59, which is an exhortation in favor of a universal and unconditional duty towards radical hospitality. According to Kant, “[h]ospitality merely means the right that every foreigner has of not being considered an enemy in a foreign country”60. He further states that factual entry might even be refused to a given foreigner, but only on the condition that this decision is not existentially threatening to whoever requires refuge/asylum. According to this “universal cosmopolitanism”, there is no such “right” to be well received wherever one goes, but merely the right of taking refuge in another country whenever an existential threat to the life of the individual is at play. This Western notion of Cosmopolitanism implies the discussion of borders, of territory, and indeed, last but not least, of sovereignty. Sovereign, in this context, is the one that decides in each case, at each moment, who is assimilated and who shall be 58

Krenak (2019), p. 33. Kant, even though a critic of the notion of a global government, thought that the most perfect global arrangement would be a federation of States (Kant (2016)). Consider this excerpt: “For states, in their relation to one another, there can be, according to reason, no other way of advancing from that lawless condition which unceasing war implies, than by giving up their savage lawless freedom, just as individual men have done, and yielding to the coercion of public laws. Thus they can form a State of nations (civitas gentium), one, too, which will be ever increasing and would finally embrace all the peoples of the earth” (Kant, (2016)). To “embrace all the people of the earth” could be consider, to put it in “Clastrean” terms, the reproduction of “the same” throughout the globe. In a sense, this might be considered by an Amerindian as the reduction of the multiple into the same. 60 Kant (1880), p. 23. 59

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expelled. Sovereign is the one that defines (or redefines) the borders. Following Derrida’s insight, there is a deep ambivalence in the notion of hospitality, since the radical of the word (“hostis”, “hospes”) is the basis either for the definition of the host, of the foreigner, as well as the enemy. While European cosmopolitism is generally comprised as the dialogue of foreigners as foreigners amongst each other, or, as Derrida wittingly put it, “as xenoi addressing xenoi who speak to them, in return, reciprocally, as xenoi”61, meaning the reduction of the differences in the same of a homogeneous space of more or less tolerance, Amerindian cosmopolitism encompasses the multiplication of the multiple and the production of differentiations and becomings. The Amerindian encounter of the shaman with a jaguar is not drawn in the homogeneous space of “global relations”, where there can exist a category defined by the exclusion of all others such as “the foreigner”, but can either take place in the perspective of the shaman or of the jaguar, the real battle being over which perspective might be considered the dominating one, for that is the position of the predator. Amerindian thought draws, as Viveiros de Castro puts it, after studying the life of the Araweté, a “metaphysics of predation”62. Hospitality, in the broadly Western sense of Cosmopolitanism, is therefore a performatic conundrum in which the very definition of the “us” and “them” is at play63. Hostility or hospitality are available possibilities drawn after a fine line that differentiates them both in extensis so much that the task of this very differentiation is the role attributed to the sovereign (that is, according to Clastrean anthropology, to the transcendent, or to the One). Cosmopolitanism, in the Western sense of universal hospitality, which is to be granted to foreigners facing existential peril, is the role of the sovereign, but so long as the sovereign is himself out of perils way. There is a sort of vertical condition between the foreigner and the host in traditional Cosmopolitanism, for the host is safe and therefore gets to choose, to filter, to say who enters its home and who shall stay outside64. The sovereign is that which filters, that which renders 61

Derrida (2000), p. 47. Viveiros de Castro (2015), pp. 33 – 34. 63 “Paradoxical and corrupting law: it depends on this constant collusion between traditional hospitality, hospitality in the ordinary sense, and power. This collusion is also power in its finitude, which is to say the necessity, for the host, for the one who receives of choosing, electing, filtering, selecting their invitees, visitors, or guests, those to whom they decide to grant asylum, the right of visiting, or hospitality. No hospitality, in the classic sense, without sovereignty of oneself over one’s home, but since there is also no hospitality without finitude, sovereignty can only be exercised by filtering, choosing, and thus by excluding and doing violence. Injustice, a certain injustice, and even a certain perjury, begins right away, from the very threshold of the right to hospitality” (Derrida (2000), p. 55). 64 This asymmetric condition is basically what constitutes the differences between the host/ guest relation and the hostage/parasite conflict. “How can we distinguish between a guest and a parasite? In principle, the difference is straightforward, but for that you need a law; hospitality, reception, the welcome offered have to be submitted to a basic and limiting jurisdiction. Not all new arrivals are received as guests if they don’t have the benefit of the right to hospitality or the right of asylum, etc. Without this right, a new arrival can only be in62

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porous, that which mediates the inside and the outside. The sovereign is at the threshold, or better still, the sovereign is the threshold itself. These notions of Western Cosmopolitanism are deeply disturbing to an Amerindian. Shamanic Cosmopolitanism is all but about being “unimplicated”. The shaman is himself the one who suffers and is put in peril. There is no safety that could protect him, there is no place to hide. The shaman does not render a supposedly sovereign decision onto others, his subjects, but is himself the one that crosses bodily thresholds (that is, “expands his subjectivity”), facing the utmost menace of irreversibly “becoming other” (i. e., of dying), to cure its siblings, to speak and dance with the spirits, to build and protect his spirit house that rises as high as the sky and in fact, prevents the sky from falling. To expand one’s subjectivity means to face himself the menace of disintegration and death. A shaman does not delegate this task to anyone but offers his own body to the shamanic experience65. This differentiation between Western Cosmopolitanism and Amerindian cosmopolitanism resembles the difference between the priest and the shaman, as drawn by Viveiros de Castro. While the priest is someone who “administers the sacrifice of others”66, the shaman is properly the victim of a sacrifice that he must himself endure to fulfill his duty towards the socius. The shaman is himself “dead by anticipation”, that is, he is the so-called “future food” of the cannibal spirits67. That is, the shaman is not transcendent to the “cosmological polity” in which he inhabits (a polity constituted also by animals and spirits, the dead and the living). Better still, the shaman is not the one that can establish and impose lines, frontiers, and borders, but the one who transgresses them. A transgression that is only available so long as every transcendence is chased away, as long as radical immanence is claimed as being the case. An immanence that nevertheless shall not be confused with “equality”, nor with “sameness”. This immanence is not simply “horizontal”, but “transversal”. Transversality is at play, which enables a “perpetual disequilibrium”68, consolidating intensive relationships among the living69. Shamanic perspectivism is deeply anchored in the bodily asymtroduced ‘in my home’, in the host’s ‘at home’, as a parasite, a guest who is wrong, illegitimate, clandestine, liable to expulsion or arrest” (Derrida (2000), pp. 59 – 61). 65 Kopenawa/Albert (2015). 66 Viveiros de Castro (2015), p. 174. 67 Viveiros de Castro (2015), pp. 173 – 174. 68 Viveiros de Castro (2015), p. 180. 69 The concept of intensity is also one key-concept in Deleuze’s philosophy. It is developed in many of his early writings, and follows his main concerns throughout his oeuvre with not irrelevant changes along the way. Nevertheless, in order to develop a general orientation around the subject, cfr. the following excerpt: “La différence n’est pas le divers. Le divers est donné. Mais la différence, c’est ce par quoi le donné est donné. C’est ce par quoi le donné est donné comme divers. (…) Tout phénomène renvoie à une inégalité qui le conditionne. Toute diversité, tout changement renvoient à une différence qui en est la raison suffisante. Tout ce qui se passe et qui apparaît est corrélatif d’ordres de différences : différence de niveau, de

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metries between different species, so much as to state that the shaman is the one who is truly able to err among interspecific strata, that is, to assume different perspectives than his own, to assume different becomings (animal-becomings, becoming-others, becoming the enemy). According to the understanding of an Amerindian, for an individual to understand the ways of the other species (something that comes in handy during the hunt, as well as during war), this individual must assume the bodily complexion of this other (that is, its habitus, according to Viveiros de Castro70). Amerindian perspectivism does not rely on representations, nor should it be considered a primitive form of relativism. There are no “partial” and “interchangeable” perspectives in Amerindian thought. On the contrary, each and every perspective is total and incommensurable to one another71. Every perspective is a total reality, incommensurable to one another. This incommensurability is nonetheless established only in the context of actual relations, actual interspecific encounters (between hunters and prey, according to this predatory ontology). Nothing lacks to no-one, since this interspecific dialogue that the shaman takes part in is responsible for multiplying the different perspectives available, never reaching a somewhat totality which might render each part insufficient per se. Since “perspectivism is not a relativism, but a multinaturalism”72, one needs to understand the connection between perspectivism and multinaturalism, since the latter cannot be understood apart from the former in Amerindian thinking. Amerindian perspectivism is only possible due to the fact that it is grounded in the multinaturalist claim, but the contrary statement is also true, for multinaturalism is also grounded on a perspectivistic dynamics. Capture (i. e., totalization) is avoided so long as the shaman can press his own perspective against every other perspective. Whenever the perspective of the Other is preponderant over that of the shaman (i. e. whenever the shaman lets this Other assume a transcendent position which enables the latter to dictate the lines which might be transgressed or not), then the shaman is truly the second person of a predator, he is definitely the “You” of the relation and is living no more. The shaman is able to resignify the subjectivity of its own community by assuming the perspective of its other (it is indeed preferred when this “other” is in fact an “enemy”). Shamanic cosmopolitism is not focused on totalizations, but on the “multiplication of the multiple”, on the “expansion of subjectivities”, on this “perpetual disequitempérature, de pression, de tension, de potentiel, différence d’intensité. (…) L’expression « différence d’intensité » est une tautologie. L’intensité est différentielle, différence en ellemême. Toute intensité est E – E’, où E renvoie lui-même à e – e’, et à e – e’ etc. : chaque intensité est déjà un couplage (où chaque élément du couple renvoie à son tour à des couples d’éléments d’un autre ordre), et révèle ainsi le contenu proprement qualitatif de la quantité” (Deleuze (1968), pp. 286 – 287). 70 Viveiros de Castro (2002), p. 380. 71 Viveiros de Castro (2015), p. 180. 72 Viveiros de Castro (2002), p. 379.

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librium”. The asymmetries of the shamanic perspective, following Clastres’ insight, are destined to conjure/anticipate the State’s capture, to sustain a society “against” the State, a body politics that does not let itself be subjected to a totalization in which so clear frontiers and borders are drawn, such as those between the dead/living, the human/animal, the us/them, and so forth. In the Amerindian world, ontological dignity is conferred to a plurality of beings and natural forces, each and every one with a personality worth considering. A deep entanglement ties the resistance against the State, the postponement of Apocalypse, and the role played by the shaman in Amerindian “Cosmo-politics”. A shaman is responsible for the so-called “interspecific dialogue”, and he does so by assuming the perspective of the other, which implies the reaffirmation of a multinatural reality. Shamans are able to retell the story73. According to Viveiros de Castro, a good shamanic interpretation is one that manages to see each event as being, in truth, an action, an expression of intentional states or predicates of some agent. True knowledge aims at revealing a maximum of intentionality. “Shaman’s interpretive success is directly proportional to the order of intention that can be attributed to the object or noema. An entity or a state of affairs that does not lend itself to subjectivation, to the determination of its social relationship with the one it knows, is shamanically insignificant”74. The meeting or the exchange of perspectives is political art, diplomacy. However, perspectivism is not relativism, but relationalism75. There are no points of view about things. Things and beings are points of view. As Viveiros de Castros76 points out, the question here, therefore, is not that the shaman knows, for example, “how monkeys see the world”, but rather what world is expressed through monkeys, what world they are the point of view. To know is to personify, to take the point of view of what must be known – of that (of who). If Western multiculturalism is relativism as a public policy, Amerindian shamanic perspectivism is multinaturalism as a cosmic policy. The understanding of the body is completely different between an Amerindian and a European. Metamorphosis is an ever-ready possibility for an Amerindian. Ac-

73 When Viveiros de Castro states that “the indigenous problems is not ‘fregean’ in nature” ((2002), p. 387), he is developing on the abilities that the shamans possess to assume other perspectives than their own. To adopt another order of reference is, therefore, the presupposition for the proliferation of meanings, which assures any hermeneutical success. A flawed interpretation of a given event, according to the Amerindian conception, would be one that reaches a dead-end, one that claims to be at rest and immobile for it is supposedly absolute truth. A flawed interpretation is one that allegedly states what the “case” is, in exclusion to every other possibility. This immobility of the flawed interpretation would be the index of a capture to an Amerindian, in the sense discussed above. A capture that perhaps would indicate a point of no return which, nonetheless, might not have been fully perceived. 74 Viveiros de Castro (2020), p. 359. 75 Viveiros de Castro (2020), p. 382. 76 Viveiros de Castro (2020), p. 385.

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cording to Viveiros de Castro77, not everybody is able to resist and control the process of metamorphosis. In fact, only a few are capable of doing so. This bodily transformation, which allows the shaman to assume another perspective than his own, is not to be taken lightly. Not every type of body is able to persevere when faced with such a grievous situation. In order to resist and, consequently, to achieve the condition of assuming a wholly different perspective, the body needs to be confronted with the limits of its disintegration (that is, of death itself). This disintegration is generally related to a sort of cannibalism (this is why the spirits, who are ex-humans, refer to the shaman by the name of “future food”). “The great diacritic, the place where the difference of perspectives takes place, to a European is the soul (indigenous people are men or animals?); to the indigenous, however, it is the body (the Europeans are men or spirits?). (…) In sum: European ethnocentrism consists of denying that other bodies have the same soul structure; whilst an Amerindian simply doubts that different souls have the same body constitution”78.

According to this, it makes sense of speaking of a somatic perspectivism. Perspectivism is a “bodily mannerism”. To state that a particular perspective is not a representation that one may have from the other person means to recognize an important difference (yet another) between the Western way of thinking and that of the Amerindian. The perspective is an affair of the body, not of the soul79. A perspective is not a representation, since representations are properties of the soul. A perspective is a point of view, and a point of view is in the body. Being able to occupy the point of view is undoubtedly a power of the soul. But the difference of views is given by the specificity of the bodies. Viveiros de Castro is not referring to differences in body physiology. What he calls ‘body’ is not synonymous with distinctive biology or characteristic anatomy, but rather affections, conditions, or abilities that distinguish each species of the body: what he eats, how he moves, how he communicates, where he lives, whether he is gregarious or lonely. The body is a set of manners or ways of being that constitute a habitus. Body morphology is a powerful sign of these differences in conditions, although it can be misleading, since a human figure, for example, maybe hiding a jaguar-condition. Between the formal subjectivity of souls and the substantial materiality of organisms, there is that central diagram that is the body as a set of conditions and capacities, and that is the origin of the perspectives. The difference of the bodies, however, is only apprehended from an external point of view, towards another; since, for itself, each type of being has the same form (the generic form of the human): the bodies are the way that otherness is apprehended80. The reorganization of the respective body parts following the metamorphosis that allows the shaman to assume the perspective of the animal means the restructuring of 77

Viveiros de Castro (2002), p. 391. Viveiros de Castro (2002), p. 381. 79 Viveiros de Castro (2002), pp. 379 – 380. 80 Viveiros de Castro (2002), p. 380. 78

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the body that, no matter how capable it might be, does not have an absolute malleability. Disintegration is always a possibility. In the very limit of this dangerous experience, however, one is able to analyze the series of thresholds before which the Arawete’s body assumes, for instance, a jaguar affection, or the affection of a peccary. The body is understood as a “beam of affections and potency”81. The limits of these becomings are the consistency of the body itself. It is not simply a statement about the ability to persevere in the existence of a body that augments its capacity of affecting and being affected ad infinitum, but about a body that assumes a specific becoming while leaving uncountable other possibilities behind. The actualization of a becoming (a virtuality) is not processed in every imaginable sense at the same time. An individual who assumes a jaguar becoming cannot simply choose to be affected as a peccary as well. A jaguar, as long as it remains a jaguar, cannot assume what a peccary desires, as long as it remains a peccary. Contrary to an original impression, Amerindian communities can be as “ethnocentric” as Western societies. “Ethnocentrism would not be the sad privilege of the Western people, but a natural ideological attitude, inherent to human groupings”82. The difference, though, is that the ethnocentrism of each one is indeed different from one another, as one could conclude from Lévi-Strauss’ anecdote of the colonizing enterprise of the Great Antilles. “In the Great Antilles, a few years after America was discovered, while Spaniards sent inquiry commissions to investigate if the locals had a soul or not, the indigenous people were dedicated to the task of drowning the white men they captured, in order to establish, by long observation, whether their dead bodies were liable to putrefaction”83.

Viveiros de Castro continues in his analysis of Lévi-Strauss’ comments: “[And], if the first [the Europeans] concluded that the Indians were animals, the locals simply doubted whether white men were in fact deities84. ‘À ignorance égale’, the author concludes, this latter attitude was much more decent and humane”85.

Indigenous communities never denied the humanity of the Europeans, but they would like to understand the statute of their insertion in the cosmic chain of predation. Therefore, they have seriously doubted whether the Spaniards were spirits or not (after all, the spirits are hunters/killers par excellence in Amerindian cosmopolitics)86. According to Lévi-Strauss, in the state of ignorance in which the Amerindian communities found themselves with regard to the Europeans, and vice-versa, the Indian’s attitude towards the colonizers seems much more worthy of a human being than that of the colonizers concerning the locals (which shall not imply that the In81

Viveiros de Castro (2002), p. 380. Viveiros de Castro (2002), p. 368. 83 Lévi-Strauss (1952c), p. 384; Viveiros de Castro (2002), p. 368. 84 Viveiros de Castro (1955a), pp. 82 – 83. 85 Viveiros de Castro (2002), p. 369. 86 Viveiros de Castro (2002), p. 269. 82

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dians were pacific or “non-violent” in their encounters with white men). After all, once again drawing from Lévi-Strauss’ lessons, “the barbarian is, before anything else, the man who believes in the existence of barbarianism”87.

III. The shaman as a resisting posture “To sing, to dance, and to live the magical experience of suspending the sky is a common trait in many traditions. To suspend the sky is to enlarge our horizons; not the prospective horizon, but an existential one. It is about enriching our subjectivities. Our subjectivities being precisely the matter that this epoch in which we live wants to consume. If there is an avidity for consuming nature, there too exists one for consuming subjectivities – our subjectivities”88.

The shaman, as this cosmopolitical diplomat who is able to transgress the bodily limits of his own perspective and, by construing a line of erring regarding other beings, expands his subjectivities, conjures the very possibility of capture and of this consumption of which our epoch is known for, following Krenak. While assuming a jaguar-like becoming, the shaman does not simply become a jaguar, but assumes a feline-affection. It is not to say, which constitutes an oversimplification of the matter at hand, that the shaman transposes a kind of “soul” into the empty body of a jaguar or of a peccary, for perspectives are corporeal. As a line of erring established by the shaman, Amerindian perspectivism is less worried about the accuracy (truthfulness) of a given assertion concerning the would-be “case”, but with maximizing one’s limits, to expand one’s horizons. In sum, with enriching one’s subjectivity. This “enriched subjectivity”, one must agree, is in fact no subjectivity at all. Which is why Krenak’s choice of words is so telling. The expanded Amerindian subjectivity is neither an hypokeimenon (rpoje_lemom, substratum), nor an “I” in the improvement of a cartesian “je pense…” after which whoever asserts the “I” might be sure that not even God himself could be as almighty to change this reality. This hypokeimenon, which resists every expropriation as an irreducible substratum, this noumenic dimension of so-called individual existence, this “subject”, does not exist in Amerindian thought. Even though Amerindians postulate that humanity is a universal trait, so that every being sees their peers as humans, while seeing the others as non-humans, this immanent humanity is not to be understood as a substratum or a subject. Quite differently than an occidental anthropologist, an Amerindian promotes the distinction between 87 88

Lévi-Strauss (1987), p. 22. Krenak (2019), p. 32.

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“(…) an anthropomorphic essence of the spiritual type, common to animated beings, and a variable visible body-form, characteristic of each species. This visible form is not a fixed attribute, but a sort of changeable and disposable clothing”89.

The notion of “animal clothing” suggests a process of differentiation with regard to which the initial state is the human body itself, for, as Viveiros de Castro asserts, the “human form is like a body inside of a body, the primordial naked body is the body’s ‘soul’”90. This clothing is “less a mere form than it is a function”91, it matters most for what it does (and allows to do) than for what it hides (and allows to hide). Amerindians do not need a Prometheus, for such a character would be completely useless in their view since the “technique” is not on the side of the human92. Humanity is not a substratum, according to this last conception, but a perspective. The shaman is the one who can commute perspectives, to access the culture of other animated beings, to communicate with them. There is no subjectivity prior to the perspective, for it is the perspective that postulates the persona. The shamanic ability to assume different personae is the utmost definition of an “enriched subjectivity”, one that is ontologically against the “narrowing down” of Western conceptualization. By commuting perspectives, the shaman plays a political art of hermeneutics, since he is able to come back and communicate the perspective of the other. Shamanism is hence a political art of radical communicability. According to Kopenawa, by enriching his subjectivity, in the sense discussed here, the Shaman is the one responsible for hosting, in his Spirit House, the images of the spirits which are engineers and architects in the continuous struggle against the ever so present risk presented by the falling sky. If the consumerist society is predominantly a consumer of subjectivities, the shaman assumes a resisting posture against every form of assimilation. To “push back the sky” or to “fall wearing rainbow parachutes” means to assert a resistance that has been taking place for more than 500 years.

89

Viveiros de Castro (2002), p. 351. Viveiros de Castro (2002), p. 389. 91 Viveiros de Castro (2002), p. 394. 92 This condition is perfectly depicted by Kopenawa’s narratives of the construction of the spiritual shamanic house and of the arrival of white men in Yanomami territory. According to the former, the Xapiri are Yanomami’s image-animals who build a spiritual house which supports the sky itself, this house is anchored on the “skies belly”. The construction of this massive structure by the Xapiri (whom only a shaman can see) is completely mediated by the animal-spirits that gather together in order to build a place where they may accommodate themselves. The latter narrative is derived from the myth that white men would be descendant of the Hayowari (i. e., of the few survivors of the last collapse of the sky, these former Yanomami which were transformed in foreigners by Omama, Yanomami’s deceased deity). These Hayowari were the heirs to Omama’s metal, they are real craftsmen, and were at first supposed to be returning out of pure generosity to help their Yanomami brothers and sisters with the tools they needed to improve their agriculture. Cfr.: Koenawa/Albert (2015), pp. 228 – 229. 90

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Viveiros de Castro is right to say that the shaman’s metamorphosis is “neither a tranquil process nor a goal”93. Nevertheless, it takes an important part in the maintenance of the way of life of those autochthonous communities. To push back the sky, to hinder the falling, to conjure/anticipate the State – each dimension of this struggle against the “One” is implicated in one another. The shaman has an important role in the task of contemporary resistance against oppression. Not necessarily in favor of an anarchist principle, but in the continuous dispersion of power. To postulate a shaman’s cosmopolitanism means to assert the essentially political role played by the shamans in maintaining the balance of their specific mode of life. To do so, the shaman does not rely on any substitutes of symbolic or real nature. As Viveiros de Castro so pointedly commented, the difference between the shaman and the priest is the fact that the shaman does not administer the sacrifice on others, but is the one who sees through that his own body is submitted to the enduring task of the transposition of bodily limits. The limits of shamanism are the consistency of the body itself. This transposition takes its toll. It is dangerous, it demands training, but the great shaman needs to go through it, to learn from and interact with other beings (jaguars, peccaries, birds, natural forces, spirits, and so forth), that is, to form counter-natural alliances against the common threat that menace their very mode of being. Each time the shaman is submitted to such an experience, there is the risk of death, there is the risk of inevitably becoming the actual food for the spirits. Each time the shaman returns from such an experience, some rituals and procedures need to be followed to purify the body, to appease the spirits and natural predators that might take revenge after such an endeavor. It demands time and demands that the choices are well and precisely made. It demands that shamans take responsibility for their choices, for events are not simply reversible. The decisions made today have consequences for the shaman, his community, and the cosmological balance which constitutes their mode of being. To assume such a responsibility is to assume the weight not only of this world but of every other world. The falling of the sky, this apocalyptical event ever so menacing, is not something that would only affect one type of being, but the whole of the cosmological balance. To conjure the falling means to resist through strategical alliances. Amerindian shamans know for a fact that no being could exist and persevere for much longer in complete autocracy. When beings are in such a tight relation to one another (such as is the case for the Amerindian predatory ontology) it is not possible for the main actors on the diplomatic stage of interspecific dialogue (shamans everywhere, humans or non-humans) not to feel the weight of their cosmopolitical responsibility in resisting the utmost catastrophe. Kopenawa’s opening words, the remarks that placed as the exergue of Kopenawa and Albert’s (2016) timely contribution, is the needed cue with which to bid the reader farewell: “We are all dying, one after the other, whites as much as us. All of the 93

Viveiros de Castro (2002), p. 391.

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shamans will end up dying. When none of them is alive to sustain the weight of the sky, it will fall on us all”94. References Assy, Bethania/Rolo, Rafael: A concretização inventiva de si a partir da perspectiva do outro: Notas a uma antropofilosofia decolonial em Viveiros de Castro, in: Revista Direito e Praxis, 10, 2019, pp. 2367 – 2398. Benjamin, Walter: Theses on the Philosophy of History, in: Illuminations. Essays and Reflections, New York 1985 [On the Concept of History/Über den Begriff der Geschichte, Gesammelte Schriften, Band I, 2]. Clastres, Pierre: La société contre l’État, Paris 1974. Deleuze, Gilles/Guattari, Félix: L’Anti-Œdipe: Capitalisme et Schizophrénie 1, Paris 1972. Deleuze, Gilles/Guattari, Félix: Mille Plateaux: Capitalisme et Schizophrénie 2, Paris 1980. Deleuze, Gilles/Parnet, Claire: Dialogues, Paris 1996. Deleuze, Gilles: Différence et Repetition, Paris 1968. Deleuze, Gilles: Le pli. Leibniz et le baroque, Paris 1988. Derrida, Jacques: Of Hospitality: Anne Dufourmantelle invites Jacques Derrida to respond, Stanford 2000. Derrida, Jacques: Spectres de Marx, Paris 1993. Foucault, Michel: The Subject and Power, in: James Faubion/Paul Rabinow (eds.), Power, New York 2000. Foucault, Michel: Two Lectures, in: Colin Gordon (ed.), Power/Knowledge: Selected interviews & Other Writings 1972 – 1977, New York 1980. Heidegger, Martin: Die Grundbegriffe der Metaphysik: Welt – Endlichkeit – Einsamkeit, in: Gesamtausgabe 29/30 2, Frankfurt a. M. 1992. Kant, Immanuel: Perpetual Peace, in: Complete Works, e-book, Hastings 2016, irregular paging. Kopenawa, David/Albert, Bruce: A queda do céu: Palavras de um xamã yanomami, São Paulo 2015. Krenak, Ailton: Ideias para adiar o fim do mundo, São Paulo 2019. Maniglier, Patrice: La parenté des autres: À propos de Maurice Godelier, in: Critique, 701, out, pp. 758 – 774. Viveiros de Castro, Eduardo: A inconstância da alma selvagem, São Paulo 2002. Viveiros de Castro, Eduardo: Metafísicas Canibais, São Paulo 2015. Wagner, Roy: The invention of culture, Chicago 1981. 94

Kopenawa/Albert (2015).

Citizenship beyond borders1 By Celso de Moraes Pinheiro

Introduction The concept of citizenship has been traditionally associated with the notion of national borders since its very origin in ancient Greece. In general, individuals have to meet some basic requirements to be treated as citizens. Basically, in order to become citizens individuals must belong to a national state or political community, the central idea being that membership of state assures them the status of citizens, if not entirely, at least initially. Membership is, therefore, the basic initial condition for the very possibility of citizenship. But it is not the only condition; in addition, to be treated as citizens individuals must take part in a nation-state. Historically, it is easy to observe how that idea has remained among us until today without major changes. Over time, however, some conceptual particularities have given us clues to formulate new definitions of citizenship. Is it still possible today to conceive a citizen as someone that belongs exclusively to one nation? Would it be possible to expand the definition towards a global citizenship? These and other inquiries pave the way towards an analysis of a new concept of citizenship, one that goes beyond the limits of nation-state borders.

I. The concept of citizenship in Antiquity History has shown how much the idea of citizenship is limited by borders and restricted to the principles and laws of a nation-state. Over centuries, in order for individuals to be treated as citizens in a particular location, they would have to meet some basic requirements. But those requirements were neither subject to individual free choice nor dependent on actions that would be up to individuals themselves. On the contrary, citizenship depended on a range of conditions far beyond the control of individuals. Place of birth, for instance, was one of the main factors for an individual 1 This article is a revised version of a paper delivered at the I International Colloquium on Cosmopolitanism: Justice, Democracy, and Citizenship without Borders, held at the Federal University of Paraná, UFPR, Curitiba, 8 – 11 October, 2019. Translated into English by Luzia Araújo, Entrelinhas Editorial.

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to become a national citizen. In some cases, such a status would depend on their parents’ place of birth. By meeting all requirements, an individual could be treated as a citizen in most cases. In other cases, it was also necessary to conform with specific local laws or rules strictly related to citizenship issues. Evidence for the need to comply with compulsory requirements can be found in The Politics of Aristotle. The Greek philosopher has listed a number of criteria for individuals to be treated as citizens of Athens. Those criteria were: place of birth, ascendency, property, and the right to vote. It is worth noting, however, that the concept of citizenship in Aristotle is not introduced in a straight and positive manner. He starts from negating the concept by first introducing individuals who would not comply with the requirements to be treated as Attic citizens, and then determines those who effectively were. With respect to birth place, for instance, if individuals failed to meet any other requirement, they could not be treated as citizens. The mere fact of living in Athens would not guarantee a foreigner or a slave a right to citizenship. They would be regarded essentially as inhabitants. Thus categorized, “resident aliens” could only claim specific rights from the state in an indirect or imperfect way: “Even resident aliens in many places possess such rights, although in an imperfect form; for they are obliged to have a patron. Hence they do but imperfectly participate in citizenship, and we call them citizens only in a qualified sense, as we might apply the term to children who are too young to be on the register, or to old men who have been relieved from civil duties. Of these we do not say simply that they are citizens, but add in the one case that they are not of age, and in the other, that they are past the age, or something of that sort; the precise expression is immaterial, for our meaning is clear”2.

Nevertheless, the conceptual strength is directly and intimately associated with physical space. Citizenship implies membership to a particular nation, and, consequently, provides legal guarantees to an individual who is under protection of laws established within state borders. Furthermore, Aristotle notes the central role of a citizen in relation to an individual – for him a citizen is the end of the state. Surely, a citizen is an individual, but, as Aristotle suggests, greater weight is given to the fact that an individual be treated as a citizen. That is because it is the citizen that constitutes a state. For Aristotle, the state is the very foundation for treating a man well as a citizen: “But a state exists for the sake of a good life, and not for the sake of life only”3. Citizenship, therefore, makes no sense beyond the limits of a state. And, in order to understand what a state is, Aristotle emphasizes the need to define what a citizen is: “HE who would enquire into the nature and various kinds of government must first of all determine ‘What is a state?’ At present this is a disputed question. Some say that the state has done a certain act; others, no, not the statea, but the oligarchy or the tyrant. And the legislator or statesman is concerned entirely with the state; a constitution or government being an arrangement of the inhabitants of a state. But a state is composite, and, like 2 3

Politics, Book III, p. 137, § 4, 5. Politics, 1885, p. 148, Book III, § 6.

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any other whole, made up of many parts; — these are the citizens, who compose it. It is evident, therefore, that we must begin by asking, Who is the citizen, and what is the meaning of the term”?4

Defining what a citizen is, therefore, to give meaning to what a state is. Given that citizenship only occurs in the act of membership of state, the citizen is, at the same time, a participant in and the very cause of the state. Departing from Aristotle’s considerations one can see an important link between an individual and his or her community, or, in other words, the essential feature of a citizen’s membership of state. Taking into account a broad range of forms of government, Aristotle seeks a common point that best defines a citizen, since “the citizen then of necessity differs under each form of government”5. In a first attempt at a definition, in which he looks for an absolute idea of the concept, Aristotle argues: “But the citizen, whom we are seeking to define, is a citizen in the strictest sense, against whom no such exception can be taken, and his special characteristic is that he shares in the administration of justice, and in offices”6.

Subsequently, after consolidating the idea that participation in duties of authority in general is a guarantee of citizenship, Aristotle states that an individual will be treated as citizen when taking part in both deliberative and judicial authorities: “The conception of the citizen now begins to clear up. He who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizen of that state; and speaking generally, a state is a body of citizens sufficing for the purposes of life”7.

It must be noted that membership by birth is essential, but the fact of an individual being under a state jurisdiction is part of the conditions of membership as well and, therefore, of citizenship. Membership of state goes beyond mere living under the limits of its territorial borders. It means also to be covered and welcomed by and submitted to a legal system that governs and regulates the state. In Aristotle’s writings state and City lend to individuals, in equal terms, the conditions to be treated as citizens. The legal system is the basis for citizenship, as it is through it that individuals are entitled to have rights, such as the right to vote and being voted. Likewise, it is through a legal set of rules and laws that citizens have rights and obligations. Finally, membership of state has a wide spectrum, which guarantees individuals their citizenship. Similarly, in the Roman Empire a set of rules had been established in order to designate those who would be treated as Roman citizens. Just as for Aristotle, for the Romans citizenship represented, in particular, the conditions that would afford protection to individuals under a legal system. Obviously, in parallel to protection, a sys4

Politics, 1885, p. 137, Book III, § 1, 2. Politics, 1885, p. 138, Book III, § 10. 6 Politics, 1885, p. 137, Book III, § 5, 6. 7 Politics, 1885. p. 138, Book III, § 11, 12. 5

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tem of laws also obliged individuals to fulfill certain requirements in order to be treated as citizens. Worth noting that, due to its territorial expansion at that time, the Roman Empire was spread as a “federation of cities”, in which each citizen was treated as a citizen of his own city (civitas). Each city maintained its own specificity and hierarchy based on its legal status. Initially, there were three types of rules in force in the various cities of the Empire. Those rules were governed by the Roman, Latin and Pilgrim or Foreign Law. Each set of rules had its particularities. Rome, therefore, had its own legal set, distinct from what the remaining cities of the Empire were entitled to, and different from the rules that determined the condition of foreigners as well. This does not mean, however, that Rome and other cities were completely distinct from each other. Some features were similar in different cities. Among such similarities there was a clearly defined territory, an urban center organized around a forum, a local assembly and senate, and mainly the fact that each city would offer the status of citizenship to its residents provided that legal requirements were met. A relevant aspect for us to envisage a notion of citizenship that can go beyond the limits of nation-state borders today, starting with the Romans, is the expansion of the concept and the inclusion of inhabitants of the Empire under the name of Roman citizens. The expansion of the concept of citizenship in the Roman Empire starts with Emperor Claudius (41 – 54 a. C.), who is said to have enacted a law expanding citizenship beyond the borders of Rome. Initially, the Emperor promoted an expansion of the status of Roman citizen to all notable men in Gaul. In spite of starting from an Emperor’s self interest – the Emperor himself was born in Lyon (Gaul) – the new act has brought an entire change into the legislation of the Empire. Instigated by that change, inhabitants of other provinces also demanded the right to be treated as Roman citizens, a right won shortly after the edict. It is worth noting that Emperor Claudius’ main motives to convince the senate members of such an inclusion were ideals of pacification and integration. History tells us, however, as already noticed above, that the possible real motive for the Emperor to expand the status of citizenship was the fact that he himself was originally from Gaul. Regardless of having an initial intent to give some privilege to his hometown, the justification used to convince the senate that he was seeking peace was crucial for achieving the intended change. And there is a new fact here that will be of fundamental importance for our understanding of the concept of contemporary citizenship: citizenship can go through changes based on ideas that more or less reasonably justify them. Following the changes proposed by Emperor Claudius, two further changes are significant in the history of the Roman Empire. They highlight the importance of establishing precisely what is understood by citizenship and how its concept can be adapted or modified. Nearly 150 years after Claudius, Emperor Caracalla (212 a. C.) determines that all free men of the Roman Empire should be treated as Roman citizens. From this follows a unification of the laws governing the different provinces. In other words, the Roman law becomes the legal conductor of all private relations occurring in the Empire. However, a distinction still remains among Romans and Pilgrims that would end around the year 500, when Emperor Justinian or-

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ganized and systematized the Corpus Iuri Civilis. Following Justinian’s systematization, distinctions among Romans, Latins, and pilgrims are extinguished, and every individual in the Empire begin to be treated according to the same law. It is important to highlight, however, that territoriality still remains the main guarantor of citizenship. A body of laws was understood as a set of determinations of guarantees and obligations applying to those who were citizens, that is, before embracing the totality of individuals, it applied to Roman citizens, and only to them. The change following Justinian’s proposal was just an expansion of the concept of citizenship instead of an expansion of the law. The way in which guarantees given to citizens become effective, even in this first aspect of the analysis, may vary. Membership is the very starting point for an individual to be treated as a citizen by the state. So far, there are no differences between the models presented, even if briefly, in Aristotle’s writings and in the history of the Roman Empire. However, it is important to note that, for the philosopher, membership to a particular nation-state is essential, and the means of inclusion of non-citizens are extremely restricted. What the history of the Roman Empire has shown is rather a kind of political pragmatism in order to include those who would not be submitted to the Roman legal system. If, for the Greeks, laws were imperative in determining citizenship and at the same time solid and not subject to changes, for the Romans it was possible to adjust or change the concept of citizenship in order to admit that non citizens could be under the Roman Law. What is called pragmatism here is the fact of there being a possibility of making the concept more flexible to allow for inclusions. And such a pragmatism would be a political one. In short, it could be said that the Romans, in particular with Caracalla’s and Justinian’s acts, due to political interests, changed those under the jurisdiction of state law, including non-citizens, not out of recognition of their right to have rights, but out of political reasons. Therefore, there is no need to mention any humanitarian, moral or recognition origin in such acts.

II. Freedom and the definition of citizenship The increase of global relations among peoples and nations helps us understand the reasons for expanding the concept of citizenship also towards a moral dimension. Moral considerations encompass multiple principles and processes of inclusion and recognition of specific rights of those lacking citizenship, as opposed to what happened in the Roman Empire, when the concept had been expanded but without an effective increase of rights for individuals, citizens or not, to have rights. Expanding the concept of citizenship to include a moral dimension has become an important issue in the very history of citizenship, but that does not mean that the concept has been reduced just to its moral aspect. Instead, it has gained a broader understanding, now encompassing issues beyond strictly legal concerns.

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With modernity, when the individual became the center of attention, national frontiers gain a new conceptual expansion. In addition to nation-state borders, which have determined the conditions for citizenship until then, boundaries between public and private space begin to emerge. Subjects, in their individuality, become one of the dimensions of the concept of citizenship. Such a conceptual expansion will be fundamental for the historical continuity of the term and will remain until contemporary times. Although not exactly being a moral aspect, taking an individual into account, as it occurs in modernity, opens up a possibility for devising new alternatives to determine what is meant by citizenship. Thomas Hobbes is one of the earliest modern philosophers whose political thought has opened the possibility for adding new dimensions to the conceptualization of citizenship. Following Hobbes, therefore, some fundamental elements come to light that helps us clarify what would lead to an expansion of the concept of citizenship to include a moral dimension. The distinction between internal forum and external forum introduced by Hobbes in Leviathan is a starting point to observe new elements brought into light. If exercising freedom of opinion is the foundation for a democratic state, then understanding how this effectively takes place becomes an essential step in order to articulate a debate on the idea of a cosmopolitan, transnational or cross-border citizenship. Hobbes seems to agree with the idea that participation of individuals in a state is fundamental for the very existence of citizenship. However, a citizen is not merely part of a state. Rather, a citizen is an individual who has will and particular desires that are manifested within a private environment. Thus, if the state has not only a legal but also a moral obligation to offer protection to its citizens, it must offer guarantees to individuals also in the scope of their private lives. And those guarantees include mainly the right to freedom of thought. According to Hobbes, liberty is fundamental to one’s existence in a private space. However, for him it is up to the subject to obey the sovereign in external behaviors. That is, freedom of thought is guaranteed by the state as long as there is a kind of submission to the orders of the sovereign in the public space. So, how to reconcile these positions? Hobbes’ analysis suggests that peace among individuals has an essential character. According to the philosopher, if individuals put themselves as judges on what is good or bad, peace could hardly be found. Similarly, if there was public criticism regarding the acts of the sovereign, the situation of peace would be in deficit. With this, Hobbes may be indicating that peace implies obedience. In chapter XXV, item 3, of his work entitled Elements of Law, Natural and Politic, Hobbes argues that no human law can compel a man’s conscience, but only his actions. It must be emphasized that obedience does not mean adherence to, that is, obeying does not necessarily mean adhering to a particular order. It is precisely because of this that civil laws are taken as targeted exclusively at external behaviours of individuals, commanding their actions but not their conscience. Therefore, subjects have the duty of obedience, regardless of their opinions, desires, and feelings on a matter or an order received. For this reason, Koselleck affirms that the Hobbesian notion of internal forum aims to

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dissociate liberty of conscience from liberty of speech8. Insofar as they recognize themselves as authors of a sovereign’s actions, subjects are constrained by a general principle of obedience. Therefore, subjects cannot refuse to obey the orders of their sovereign without contradicting themselves. And this is the foundation of Hobbes’ conception of citizenship, as discussed in both De Cive and De Homine. For Hobbes the subject is an individual split between a logic of civil obedience and a claim to a right of respect for their conscience. In Behemoth, Hobbes suggests that “A state can constrain obedience, but convince no error, nor alter the mind of them that believe they have the better reason”9. A state, therefore, is not a “judge of conscience” insofar as laws do not seek to make men wise or virtuous; laws seek just to assure them a peaceful order instead. Once more there is a kind of disruption between the internal and external, a disruption which is fundamental to a conceptualization of citizenship. Citizens, as individuals, owe an obedience that is viewed as being elemental to their acceptance as citizens. The way of lessening this conflict led Hobbes to write, in Leviathan, that: “In a Body Politique, if the Representative be one man, whatsoever he does in the Person of the Body, which is not warranted in his Letters, nor by the Lawes, is his own act, and not the act of the Body, nor of any other Member thereof besides himselfe: Because further than his Letters, or the Lawes limit, he representeth no mans person, but his own. But what he does according to these, is the act of every one: For of the Act of the Soveraign every one is Author, because he is their Representative unlimited; and the act of him that recedes not from the Letters of the Soveraign, is the act of the Soveraign, and therefore every member of the Body is Author of it”10.

The above, then, raises wider questions concerning another key issue: civil disobedience. How can citizens accept to adopt a political behavior that is strictly contrary to their deepest moral convictions? According to Hobbes, we owe respect to the state even if it orders us to act against our own convictions. Therefore, a mere moral disagreement would not be a cause of civil disobedience. But, what if an executive order by the state obliges individuals to reject some God’s Law? The first point to be noted is that such a conflict puts the individual in a situation slightly different from the contention between individual and citizen, that is, between the internal and external forum. In the case of orders compelling individuals to act in contradiction or opposition to God’s commandments, the conflict is fundamentally between the individual as a political subject and as Christian. And only in such a condition it is possible to think of acts of civil disobedience. For Hobbes, the possibility of disobedience occurs only at the moment when the individual is forced to act against his convictions about Divine Laws. Thus, the philosopher rules out any possibility of con8

Koselleck (1979), p. 33. Hobbes, Thomas, The English Works of Thomas Hobbes of Malmesbury; Now First Collected and Edited by Sir William Molesworth, Bart (London: Bohn, 1839 – 45), 11 vols., vol. 6. 22/06/2020. 10 Hobbes (1651/1909), p. 89. 9

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tradiction in the fact that citizens respect and obey orders that may, internally, be contrary to their convictions. The distinction between internal and external forum is therefore a matter of crucial importance for our contemporary concept of citizenship inasmuch as the individual plays a fundamental role also as citizen. There is no risk of suffocating an individual in favor of citizenship. In order to provide a more complete analysis, Hobbes manages to divide what is united. Individuals and citizens are the same. The fact that individuals, as citizens, should avoid publicly exposing their opinions, especially when those opinions are contrary to the laws and rules of the state, guarantees a way of freedom, freedom of thought. If there are limits to their actions, it is because their opinions might not be collaborating with the ultimate principle of seeking and maintaining peace. In short, the idea of peace is the baseline for the fulfillment of the citizen’s duties. However, with Hobbes, the distinction between public and private spheres becomes evident, and this is fundamental to the idea of contemporary democracy. As already mentioned, moral principles are not clearly explained by Hobbes. However, his ideas on internal and external forums have proved fundamental at this point because that distinction seems to indicate the need for a closer look at the individual. So far, individuals are regarded as those who need to fulfill a state legal disposition to be treated as citizens. But, from now on it is possible to observe how inclusion begins to gain strength in debates about citizenship. With Hobbes’ position on liberty, which came into light with the internal forum, one can see that a need arises to consider those who do not share, even in thought and opinions, all founding values of citizenship. This dimension of liberty will be crucial for our contemporary notion of citizenship, especially when addressing the possibility of communication among individuals from different countries, as if they were forming a new public space across borders. Another modern philosopher whose thoughts are essential to the present discussion is Immanuel Kant. One of the fundamental points of the political philosophy in Kant is the notion of contract. According to him, a contract is the basis for the foundation of any society. Building on this principle, citizenship is in a relation of dependency with the idea of contract, since citizenship is a constituent part of any society. Kant (1996) suggests that it is by an original contract that men reach the possibility of being treated as citizens. For him, “[t]he act by which a people forms itself into a state is the original contract. Properly speaking, the original contract is only the idea of this act, in terms of which alone we can think of the legitimacy of a state. In accordance with the original contract everyone (omnes et singuli) within a people gives up his external freedom in order to take it up again immediately as a member of a commonwealth, that is, of a people considered as a state (universi)”11.

11

Doctrine of Right, p. 127 § 47.

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And, if freedom can be considered as the essence of an individual, then, by becoming citizens, individuals grant themselves their own freedom. That freedom is also the legal freedom of individuals, arising in the form of will that gives itself its own law. Kant (1891) gives us a glimpse of such a conception of liberty, when presenting the three founding rational principles of civil state (bürgerlicher Zustand): “The Civil State, then, regarded merely as a social state that is regulated by laws of right, is founded upon the the following rational principles: 1. The LIBERTY of every Member of the Society AS A MAN. 2. The EQUALITY of every Member of the Society with every other AS A SUBJECT. 3. The SELF-DEPENDENCY of every Member of the COMMONWEALTH AS A CITIZEN”12.

The three principles above mentioned establish a connection between state and individual, that is, between man and citizen. However, it is worth noting that the Kantian citizen (Bürger), taken from his self-dependency, is precisely that member of the community who can be seen as co-legislator at the same time. On the other hand, those who are under existing public laws are not considered equal in terms of a right to dictate these laws according to Kant. And, since they do not participate in the drafting of laws, but are already subject to them, owing obedience and offering protection to them, they are not called citizens, but co-protected (Schutzgenossen). In short, the ones who are at the same time co-legislators will be citizens; the others, who are subject to the legal order, but do not participate as co-legislators, are designated as co-protected. According to Kant, “[a]ll right, in fact, depends on the laws. A public law, however, which determines for all what is to be legally allowed or not allowed in their regard, is the act of a public Will, from which all right proceeds and which therefore itself can do no wrong to anyone”13.

Thus, no particular will can be legislating for a community. And, as argued by Kant, this fundamental law, arising from a general will (unity) of the people, will be called the original contract, as mentioned above. It is important to note that the crucial issue in this analysis lies in what he calls public will (öffentlichen Willens), especially since, in the sphere of politics where citizenship resides, that is the legislator per se. And, if those who are called co-protected owe obedience to the laws arising from the public will, then they are, in some way, subject to the law of the state where they live or are at a particular moment. They must, therefore, obey what is established and enunciated by those laws. Another point, and perhaps the most important one, brought to light by Kant regarding what accounts for a contemporary notion of citizen concerns the idea of hospitality. According to the philosopher:

12 13

Principles of Politics, p. 35. Principles of Politics, p. 42.

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“[…] any legal constitution, as far as the persons who live under it are concerned, will conform to one of the three following types: (1) a constitution based on the civil right of individuals within a nation (ius civitatis) (2) a constitution based on the international right of states in their relationships with one another (ius gentium) (3) a constitution based on cosmopolitan right, in so far as individuals and states, coexisting in an external relationship of mutual influences, may be regarded as citizens of a universal state of mankind (ius cosmopoliticum)”14.

Presented as the third condition for promoting peace, the idea of a cosmopolitan right establishes a duty of respect to foreigners. In the context of relations among individuals from different nations, the idea of respect inaugurates the need for institutions that are capable of guaranteeing a situation of peace. Following Kant, one can see, however, that there will be a limit to the observance of such a right. A cosmopolitan law, while expanding the right of citizens worldwide, establishes a “restrictive character: the cosmopolitan right is limited to the right of hospitality, it cannot be more than that”15. The limit on the right to hospitality seems to indicate that this restriction would make it impossible to guarantee that foreigners are treated as citizens of the world. The dynamic nature of relations among individuals of different cultures and peoples requires a kind of legislation that, on one hand, manages to preserve and guarantee multiculturalism and pluralism, and, on the other, exerts sufficient strength to protect individuals wherever they are. It is essential to realize that in Kant’s writings the unconditional duty of hospitality is directed exclusively at the relationship between or among individuals, excluding, at that moment, the state. Solidarity arising from this unconditional duty is produced out of relationships among individuals, particularly when one of them is under threat in his or her country. In that case, then, foreigners must be welcomed and have permission to stay where they are and/or where they think they are safe. It follows that – with the removal of the state in this situation, in particular – individuals who receive refugees may confront their state if they propose to repatriate aliens, for example. In a situation of private asylum a kind of transnational solidarity emerges. The idea of solidarity is based on moral principles of respect and dignity for every human being, regardless of their citizenship or origin. However, the principle of equality is required as a basis for these considerations, if not as citizens, or members of one state or another, at least as human beings. The question still remains whether this required equality is sufficient to determine a citizenship status that exceeds the limits imposed by borders.

14 15

Kant (1917), p. 119. Nour (2004), p. 56.

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III. Contemporary citizenship: a new citizen? Types of contemporary citizenship that substantially alter the traditional characteristic of the concept can and should be addressed. If citizenship was previously thought from perspectives that took into account basically membership of state, which was determined by a set of laws specific to each country, and physical limits of territorial borders, today it is possible to discuss citizenship issues from distinct points of view. This does not mean to affirm that citizenship is no longer discussed from the perspective of membership of state. It means, instead, that new aspects need to be incorporated into every discussion attempting to establish a broader and more substantial concept that accounts for an individual’s status as a citizen. History shows that citizenship is determined a priori by a set of conditions of membership. Although such conditions can be given in different ways, they are always linked to the fact that citizens have rights and obligations vis-à-vis the state. It is possible to say, then, that a status of citizenship must have legal guarantees. This key point in formulating the concept of citizenship is clearly brought to light by Aristotle, as mentioned earlier. Being a citizen means fulfilling a set of legal requirements. Similarly, the Roman Empire brings the idea of membership as essential for determining those who would be treated as Roman citizens. A legal dimension is strongly evident in both ancient Greek and Roman civilizations, since the relationship between citizenship and a set of laws is the starting point for understanding that being a citizen means to be under common rights that are shared among all members of a state. Modern thought, as shown briefly above, indicates that new additions to the concept can be noticed throughout the history of the notion of citizenship. By bringing Hobbes (internal and external forums) to the center of the present discussion, a premise is opened that citizenship could represent only one aspect of an individual’s life, that is, it would only make sense to discuss citizenship in the public space. In such a circumstance, participation of individuals in the notion of citizenship could seem partial. In other words, an internal forum concerning an individual’s consent to belief would guarantee to citizens the possibility of disagreeing with aspects that are specific to citizenship. Individuals would no longer need to be a component of the concept. Membership of state would take place from an external point of view, in which individuals would be subjected to and protected by, at the same time, a set of laws that would guarantee them the status of citizen. Internally, however, it would not be a problem to disagree with any of those laws, as long as they were not explicit in the external forum. The relevance of this aspect, even if briefly analyzed, is due to the fact that contemporaneity continues to demand agreement and participation in obeying the laws that determine the conditions of citizenship. But, as Hobbes argues, it must also guarantee freedom of thought. And now, with a major expansion admitting freedom of speech as well. Freedom of speech, of being able to communicate one’s ideas, positions and intents, even when contrary to the rules established by the state, is a fundamental guarantee of contemporary democracy. And, it can be said that only in democratic states are there conditions for the emergence of a

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new concept of citizenship. Only a genuine democracy is capable of expanding the concept beyond borders, of thinking of a cosmopolitan, transnational citizen. Another important legacy brought to us by modern thought was presented above with reference to Kant’s writings. As already seen, two aspects were highlighted in order to point out some elements that are fundamental for changing the concept of citizenship. On the one hand, the need to establish a sound analysis of a citizen’s legal status. If this had already been demonstrated since the Roman edicts, now the legal limits for citizens’ admissibility are established. Parallel to this, Kant indicates that one must think from a cosmopolitan point of view. Even though appealing to a moral point of view, when relating the right of visit to a solidarity action, Kant admits an internal value to the concept of citizenship. Not only are legal conditions constitutive of the concept, but also moral ideas of dignity, respect and tolerance come into focus. As a result, a possibility of considering citizenship from different perspectives is opened. Citizenship could be analyzed, for example, from its political, social or economic dimensions, each of which deserving special attention. Discussing citizenship is no longer limited to analyzing the legal conditions of an individual’s status who is under the laws and rules of a given state constrained within borders. To talk about citizenship today is to think of a set of conditions and situations that surround individuals in the world. It is to think of their conditions of equality, freedom, action, free choice and expression of ideas and desires. It can be said that modernity has contributed significantly to the emergence of new citizens, of citizens who are no longer limited by borders of their country, of cosmopolitan and transnational citizens16. Based on these considerations, it is necessary to point out some principles that would govern this new concept and its limits. And this will be outlined below, by exploring the possibility of communication across borders, via worldwide communication networks. It is said that cosmopolitan citizenship should be able to universally encompass all individuals across the world. As a result, even a citizen of an ultra-closed, nationalist state, for example, could come to be treated as a cosmopolitan citizen. How? By membership of wider communities, which would be closer to an universalist proposal of world citizenship. An individual, a member of a state, even if restrained within territorial borders and with laws determined only to maintain their status quo, may have access to worldwide communication networks. Networks transfer the char16 Conceptions of cosmopolitan and transnational citizenship are addressed in the works by Seyla Benhabib (“Another Cosmopolitanism: Hospitality, Sovereignty, and Democratic Iterations”, ed. Robert Post, Oxford University Press, 2006, and The Claims of Culture, Princeton University Press, 2002). In addition, Samuel P. Huntington, The clash of civilizations and the remaking of the world (New York: Simon & Schuster, 1996), presents aspects that are important to the conception of a new citizen and a new world order. On the role of global media and transnational societies in the conception of such a new citizen, works by Chris Patten (What next? Surviving the twenty-first century, London: Allen Lane, 2008); Will Kymlicka (“Le mythe de la citoyenneté transnationale”, in: Critique Internationale 2004/2, n8 23, pp. 97 – 111), and Louis Lourme (Le nouvel âge de la citoyenneté mondiale, Paris: Presses Universitaires de France, 2014), can contribute to a further understanding of these terms.

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acter of citizenship to the world and expands the concept through contacts, even if dissenting or conflicting. If the interior of a state is also the ground for debate among conflicting parts, or among positions that can be contradictory and antagonistic, the world communication network is no different. Therefore, a negative critique of the power of communication networks, as it is quite common today17, would only find justifiable grounds if it were to subsidize a control or a narrowing of its amplitude, particularly because it would also be targeted at freedom, and with equal force at the equality of world citizens. It is obvious that some of the basic conditions for the possibility of such a new type of cosmopolitan or transnational citizenship should exist. It refers here, initially, to the most basic condition, that is, freedom of use and access to communication networks. Now, when a state limits or makes access to networks impossible, then a priori participation in a cosmopolitan community does not exist. Liberty of conscience, as analyzed by Hobbes, must be maintained and expanded by freedom of speech. Liberty to think differently is not enough; individuals must have liberty to express themselves differently. And, if this freedom cannot occur equally within the limits of all states, as it effectively does and for different reasons, then may it be free to occur in the space of a worldwide communication network. Even when we think of deflating the role of states in a new process of conceptualizing global citizenship, their importance is fundamental. Without guaranteeing unlimited access to global communication networks, any claim to create a global citizen is merely a pipe-dream. And that guarantee still depends on states. There is no need to look far to find examples of acts of censorship that seek to prevent or hinder unrestricted access to data available in the world network. There is no time now for an analysis of issues such as interferences linked to fake news or criminal actions and proposals, which is fundamental for a more comprehensive understanding of a new concept of citizenship. There is no need either to deny that problems exist, but the primary intention here is to postulate the existence of a new kind of citizen, a cosmopolitan, transnational citizen, who is beyond the limits of national borders. Only after consolidating the possibility of this citizen’s existence is it valid to analyse the problems that may occur, especially those related to freedom of expression in social networks and their political, religious and ideological interferences. 17 See, for example, an interview given by Jürgen Habermas a couple of years ago, in which the philosopher, after recognizing some benefits of Internet use, argues that “[w]hat upsets me is the fact that this is the first media revolution in the history of mankind that serves primarily economic purposes instead of cultural ones” (interview given to Borja Hermoso, El País Semanal, 25 April 2018, available at: https://elpais.com/elpais/2018/04/25/eps/1524679056_ 056165.html, accessed 25 June 2020). The Italian writer Umberto Eco said “Social media gives the right to speak to legions of idiots (…)” when receiving the Honoris Causa Doctorate Award from the University of Turin, in 2015. Representatives of the so-called “critical school” of communication, heirs of Adorno, Horkheimer and Benjamin, such as Evgeny Morozov and Andrew Keen, also acidly criticize the power of the world communication network. And, not least, it is a well-known fact that some governments around the world corroborates with the idea of control, or even censorship, of world communication networks.

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The normative proposal of cosmopolitanism, as presented by Kant, could be understood contemporarily just as a variant of moralization, especially when it presents itself as an obligation of hospitality based on the principle of solidarity. Thus, the traditional assumptions of membership and boundary would underlie the entire structure of the concept. Our expansion proposed here does not exclude the importance and baselines that have guided the conceptualization so far. On the contrary, it keeps all basic assumptions alive. However, it no longer anchors itself on a world context such as that of past centuries. The notion of a cosmopolitan citizenship goes beyond the normative character presented by tradition. Even when the idea of internationalization is taken into account, based on assumptions inspired by Marxism, the expansion of the meaning of the term can be glimpsed and is maintained. Considering that internationalization would be something that is no longer determined by an obligation of being, but finds itself in the sphere of action, of a revolutionary praxis, it would also be looking for an approximation with what could become a new statute for determining a cosmopolitan citizenship. Likewise, the principle of recognizing the right to have rights also remains active, specifically when an individual is a citizen. And that is precisely the fundamental point of this analysis. A new conception of citizenship turns out to be necessarily cosmopolitan, at least in principle. For example, if the idea comes from an individual’s participation in virtual environments, then there is no limit to what is meant by citizenship. Obviously, we are no longer talking about a strictly political concept, dependent on the state; we are talking about a condition. A new concept of citizenship favors the emergence of universal obligations at state level, that is, the knowledge of different forms of participation ends up leading individuals, members of a certain state, to desire the same for themselves. When facing the other, even when only in a virtual way, the individual recognizes that the other has something in common, even when merely participating in virtual groups. As a result, borders are broken down, wills and desires can be confronted and, even if one does not work directly through dialogue, a discussion can take place. Within the scope of a possible virtual citizenship, the founding principles of the concept are no longer found in a clear and objective way. However, this does not mean that they have ceased to exist. They are only blurred and no longer need continuous explicitness to act out. A dispute of conflicting and opposing ideas and positions, for example, can serve both to discredit a common basis of agreement for coexistence and to strengthen the idea of a contract that allows for freedom. Some analysts may understand that disagreement between parties, typical of social networks, would demonstrate an impossibility of dialogue. Others, on the other hand, may consider that the existence of disagreement means precisely freedom of speech in its strongest manifestation. In other words, the idea of presenting different positions, via social networks, manifested in the global communication networks, does not guarantee a single way of interpretation and analysis. Similarly, what is important for the foundation of a new concept of citizenship is the fact that different individuals, from different countries and places can have a free conversation, regardless of the

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conditions of their citizenship. And the key point of the issue resides not only in networking, but also in the fact that each individual wants and seeks guarantees so that their freedom of access and voice are preserved. This preservation, despite being dependent on the laws of their respective state, as previously indicated, goes beyond territorial borders. Freedom on the global communication network is a cross border issue. And, when considering individuals who find their freedom in a certain space, and who, at the same time, want and fight for that space to remain free and accessible to all, they are, albeit indirectly, participating in a community globally. Therefore, as a member of that community, they may come to be considered citizens of that community. Endorsing the idea of a new concept of citizenship, Pierre Lévy states that what characterizes the 21st century digital media is “a possibility of public expression, interconnection without borders and access to information unprecedented in human history”. He goes on to say that “[c]onditioned by digital media, the public space of the 21st century is characterized, therefore, not only by greater freedom of expression, but also by a new opportunity to choose sources of information, as well as by a new freedom of association within communities, graphs of personal relationships or creative conversations that flourish on the Net”18.

The starting point of Pierre Lévy’s analysis is the public space. In contemporary democratic societies, public and private realms gain special attention, especially with the works of Habermas. Whereas Hobbes addressed the issue in an introductory way by establishing a simpler distinction between the internal forum and the external forum, Habermas stresses the idea that a debate needs public space to happen. In Between Facts and Norms, Habermas defines public sphere as a “network for communicating information and points of view […] the streams of communication are, in the process, filtered and synthesized in such a way that they coalesce into bundles of topically specified public opinions”19. This is the space of a speech situation, shared in an intersubjective way, in which communication plays an essential as the locus of free debates. In the philosopher’s words: “The intersubjectively shared space of a speech situation is disclosed when the participants enter into interpersonal relationships by taking positions on mutual speech-act offers and assuming illocutionary obligations. Every encounter in which actors do not just observe each other but take a second-person attitude, reciprocally attributing communicative freedom to each other, unfolds in a linguistically constituted public space”20.

Such a public space can be found in contemporary times in virtual communication environments and social networks. The analogy described here, relating speech space to the global communication network opens the possibility of developing a new concept of citizen, of a global citizen. Habermas, when addressing deliberative democ18

Lévy (2011), p. 43. Habermas (1992/1997), p. 360. 20 Habermas (1992/1997), p. 361. 19

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racy, shows that citizenship can be understood as consisting of the participation of individuals from a certain community in decisions regarding the principles that will guide their actions. If participation in debates and discussions on social networks is understood as an action within a speech space, then the participants could be considered citizens. There would be, here, a common point of identity among participants, since they would belong, to some extent, to the same common space. Even if presented as a contradictory thesis the fact that there is not really a debate, but only a discussion, without an effective search for consensus or for the truth, the mere presence of free space provided by the network would be enough to embody a new situation of the participants, here conceived as world citizens. There would be many details to be clarified so that one could speak of a new public space. However, the fact that there is a new field for presentation of ideas, desires and wishes, whether they are political, religious, cultural or social, indicates the possibility that there is no longer any way to talk about a single concept of citizenship. Regardless of the fact that we can analyze citizenship from different points of view, as already suggested, the emergence of a public space favored by virtual communication is real and effective. And that space would be the field of action of citizens who go beyond the limits of nation-state borders. If one is to think of cosmopolitan or transnational citizens, then the scope of global communication networks proves fundamental for their understanding and definition. A criticism would be obvious that points to the verification of a so-called “authentic concept of citizenship”, since this would still depend on the safeguard provided by a state’s legal system. But even this harsh criticism, which would deserve a further chapter of analysis to be properly understood, is not enough to reject the possibility of a new idea on what citizenship is turning out to be in contemporary times. Except for the dependence on laws that enable and guarantee individual freedom to access and navigate in this world without borders, very little is required of state structures. This citizen, who is no longer limited by territorial boundaries, appears as determinant for future political practices. Citizenship beyond borders provides a variety of situations, raging from a demand for a worldwide organization that allows for and guarantees freedom of access and space of speech, to objective proposals for interference in different situations around the world. Traditional political structures may be facing a challenge of huge proportions with the emergence of this new concept of citizenship. No longer only the traditional citizen, one who is restrained by state laws, is influential or has a voice in political deliberation. Political decisions can be strongly influenced by global communication networks, favoring the appearance of new plans that will have different consequences within states. Similarly, international relations now are placed under a kind of surveillance, both from those who are directly involved in the issues and from those who can freely express their opinion on trade. As stated earlier, the fact that opinions and engagements via worldwide networks are not always justified or reasonable should not be overlooked. However, there is no denying that they increasingly give rise to previously neglected political needs. Citizenship beyond borders already

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exists and seems to have set its roots within all democratic states. The challenge, then, is to see if there will be any limit beyond the limits of territorial borders. References Aristotle: Politics, Oxford 1885, 2 vols. Habermas, J.: Between Facts and Norms – Contributions to a Discourse Theory of Law and Democracy, Cambridge, MA 1996. Hobbes, T.: Behemoth or The Long Parliament, in: The English Works of Thomas Hobbes, vol. 6, available at: https://oll.libertyfund.org/titles/hobbes-the-english-works-vol-vi-dia logue-behemoth-rhetoric#Hobbes_0051-06_709. Accessed: 5 June 2020. Hobbes, T.: Leviathan, Reprinted from the edition of 1651 with an Essay by the Late W. G. Pogson Smith, Oxford 1909, available at: http://www.dominiopublico.gov.br/download/ texto/Hobbes_Leviathan_1909.pdf. Accessed: 22 June 2020. Hobbes, T.: The Elements of Law, Natural and Politic, London 2017. Kant, Immanuel: Metaphysics of Morals, Cambridge: Cambridge 1996, https://doi.org/10. 1017/9781316091388. Kant, Immanuel: Perpetual Peace – A Philosophical Essay, London 1917. Koselleck, Rheinhart: Le règne de la critique, 1979. Lévy, P.: L’Hypersphère publique, in: Cosmopolis. Rivista di filosofia e teoria política, VI, 2. 2011. Nour, S.: À Paz Perpétua de Kant, São Paulo 2004.

Cosmopolitism in Habermas: with and beyond Kant By Charles Feldhaus

I. Introduction The work of Immanuel Kant, Zum ewigen Frieden. Ein philosophischer Entwurf (1795)1, had and still has an influence on contemporary political thought, which certainly cannot be overlooked. The number of translations of this opuscule into many diverse languages still proliferates over time and with the founding of the League of Nations by American President Woodrow Wilson the Kantian project of a peaceful and lasting order for the first time in the history of mankind began to find a place in concrete political life2. Habermas surely recognizes that Wilson never made any reference to Kant’s book in his peace league program in the aftermath of the First World War, however, when he presented the draft of the League of Nations project some German intellectuals readily recognized that Kant’s vision of a peaceful world order echoed in the American president’s project3. The fact that Kant’s proposal for the creation of a federation of States geared towards the goal of world peace or something very similar has been gaining ground in the realm of reality, shows that the project was not a mere chimera, not just something of historical and philosophical interest, but has become a collective goal of the human species. It is necessary to recognize that Wilson’s initial proposal did not have the expected success, since a few years later the world faced another major war conflict and the United Nations could do little, if anything, to prevent the Second World War. Nevertheless, Habermas believes that there are substantive differences between the document that founded the United Nations and the one that subsequently founded the United Nations Organization shortly after the end of the second Great War mentioned above. He understands that the 1945 United Nations Charter contains normative in-

1

All quotations from Immanuel Kant’s work follow the pattern of the edition of the Berlin Academy of Sciences. All Kant and Habermas translations into English are from the author of the text. 2 Habermas (2004), pp. 154 – 155. 3 Habermas (2004), pp. 154 – 155.

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novations that make it possible to identify this document as a constitution, even if it was not created with the intention of constituting a global constitution4. This is equal to saying that Kant’s proposal developed in the historical context of the eighteenth century did not stop as a mere museum piece and that, despite the historical distance of more than two hundred years with important modifications, it has gained body as a collective enterprise of the human species. It is noteworthy that, despite occupying a central role in the consolidation of institutions oriented to lasting peace, the United States of America has changed its stance over the years, refusing to be guided by the decisions of the UN Security Council, for example, which also led Habermas to identify another more worrying alternative on the international stage, namely, that of hegemonic liberalism. In what follows, the current work shows, first, that there was some fluctuation in Kant’s conception of international law (I.); that, despite this fluctuation in the legal structure of the world order oriented towards lasting peace, the spirit of Kant’s work (since it would be more controversial if it were based only, to the letter, on what is said) would still be committed to a world republic and that the federation of free states is only a temporary substitute, however, insufficient to guarantee the intended end, this being the reason why Habermas seeks another legal structure between the federation of free states and the world republic in the light of the development of international law (II.); in addressing Kant’s cosmopolitan conception, Habermas shows that it needs some conceptual revisions, and based on the analysis of Kant’s proposal suggests reforms to the very structure of the United Nations (III.); even though Habermas departed from the Kantian cosmopolitan conception of law to formulate his own view on the subject, his approach in several respects goes beyond what Kant said in 1793, 1795, and 1797 (IV.); finally, some brief considerations are made regarding the conception of Kant and Habermas with regard to distributive justice in the international sphere (V.).

II. Some variations in Kant’s cosmopolitan conception As already said, Habermas believes that the conception of cosmopolitanism that Kant develops in his small political writings needs to be complemented, and in some aspects it could be said that it even needs to be corrected. I use the term “small political writings” because, despite what many might think, Kant does not address a peaceful world order only in the opuscule Perpetual Peace (1795), but also presents some general aspects about the theme in the last part of another equally celebrated opuscule On the current expression: that may be correct in theory, but is of no use in practice (1793), which specifically deals with the relationship between theory and 4

Habermas (2004), p. 159.

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practice in response to Moses Mendelssohn’s (1729 – 1786) position in Jerusalem or on religious power and Judaism (1783), a work in which the winner of the 1763 Berlin Royal Academy of Sciences award defends a cosmopolitan position, however from a philanthropic perspective, therefore ethical, and not legal, which is exactly the point of divergence between the two. Kant says: “For my part (…) I trust in the theory that emanates from the principle of law (…) in such a manner as to introduce such a universal State of the peoples”5. In this third part of his 1793 opuscule, Kant also responds to the realistic objection that a lasting peace would be a chimera. The realistic objection may make sense against a peaceful world order based on an ethical or philanthropic perspective, but it loses plausibility when applied to a legal perspective based, at least at this point, on the Kantian project, on a universal State of peoples6. As is well known, in 1795 Kant published the opuscule Perpetual Peace, in which Kant modifies the legal structure of global peace based on “universal State of peoples” or “world republic” for a “federation of civil societies” or “a federation antagonistic to war”7. In The Metaphysics of Morals (between sections § 53 – 62) (1797), Kant again deals with international law in the final part of The Doctrine of Right. At this point in his intellectual development Kant maintains that the legal form of a peaceful international order must be a type of union that cannot have any sovereign power, which can only happen in a civil constitution, but only a confederation or alliance that can be revoked from time to time8. Kant now denominates this union “permanent congress of States” in The Metaphysics of Morals9. This fluctuation in the legal structure of a peaceful world order shows Habermas that Kant was uncertain as to which legal form would be most appropriate to achieve the desired goal of lasting peace. This shift in position on the part of Kant led commentators to speculate about the reasons for the change of opinion, about the type of contradiction that could be involved in the notion of world or global State. One can even ask whether there was a radical change between the position of 1793 and that of 1795 and 1797 or whether it was much more a change of emphasis. The textual passages are not always clear as to the type of contradiction or may even suggest a conceptual contradiction, an empirical contradiction or a pragmatic contradiction. I share Pauline Kleingeld’s interpretation, which maintains that there is no contradiction involved in the concept of world or global State for Kant10. She argues that the reason for the change in the legal structure of a world order oriented towards lasting peace is neither a conceptual contradiction nor an empirical contradiction, but a contradiction between the notion of the world State and the nature of international law itself. Kant states that international law [Völkerrecht] consists of a plurality of differ5

Kant, AA TP 08: 313. Kant, AA TP 08: 313. 7 Kant, AA ZeF 08: 357. 8 Kant, AA MS 06: 351. 9 Kant, AA MS 06: 350 – 351. 10 Kleingeld (2004), p. 304. 6

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ent and separate States11. Therefore, if international law is a plurality of different States by definition, then the appropriate legal form could not be a global State. Furthermore, Kleingeld considers it erroneous to say, as critics sometimes suggest, that a federation of free States could make little or no difference in terms of promoting lasting peace. Since the existence of one of a federation of free States clearly makes a difference in the solution of war conflicts, it is easier to find a solution to a conflict between different countries in combat when there is an independent body to deal with the situation than when there is no such instance. An impartial body is much more capable of dialoguing and mediating a solution to the conflict than the States involved in the conflict themselves could obtain from leaders with reasoning clouded by the heat of war.

III. Republicanism and the question of the proper legal framework However, I would tend to claim that interpretations of Kant’s position in Perpetual Peace, such as that of Friedrich Schlegel, which are guided much more by the spirit of Kant’s work than by the difficulties of interpretation to the letter, could be more promising in understanding the position of the thinker. In Essay on the concept of republicanism (1796) Schlegel maintains the world republic as an ideal or as a fiction (as he commonly calls it). It is pertinent to remember here that, in the passage from Perpetual Peace, in which Kant introduces the federation of free States without coercive laws and without the power of a State as a substitute for a world State or a world republic, he expressly says that this alternative should be chosen only under the condition that people are not prepared to accept the positive idea of a State of peoples. Only on the condition that the peoples are not prepared to accept in hipothesi what is correct in thesi (a world republic), then the federation of free States in continuous expansion is the only way to avoid injustice and enmity in the world12. It can be said that the federation of free States or the foedus pacificum is the only way to ensure confidence in the law13. The obligation [Verbindlichkeit] of international law requires at least a free federation of States to assist in the arbitration of armed conflicts. Habermas considers that the legal form proposed by Kant is insufficient, particularly if attention is paid to the way in which Kant defines the “permanent congress of States” in the 1797 version: “A voluntary union of different States, susceptible to being dissolved at any time, and not a union (like that of the American States) that is based on a political Constitution and that is, therefore, indissoluble”14. The permanent congress or the federation of free States lacks the attribute of permanence and this aspect seri11

Kant, AA ZeF 08: 354, 367. Kant, AA ZeF 08: 357. 13 Kant, AA ZeF 08: 356. 14 Kant, AA MS 06: 351. 12

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ously disturbs Habermas. He considers that in order to be consistent, the notion of a lasting alliance as proposed by Kant should assume State functions and be based on a constitution15. It should, unlike what Kant proposes in the quote above, assume and not refuse the type of union that existed between the American states, a union based on a constitution and therefore endowed with the status of permanence and capable of enforcing its decisions before the States members. For Habermas, the obligation [Verbindlichkeit] implied in the notion of “law” in international law could only be achieved with a more robust legal structure, which Habermas considers is somehow being implemented with the normative innovations that occurred in international law mainly after the end of the Second World War. It is always good to remember that Habermas’s proposal is intended to be idealistic, but not in a pejorative sense, so it would also be “realistic”. The realism of the proposal results largely from the reconstructive strategy. He seeks to reconstruct his concept of international law from what has been effected through international treaties, trials of crimes after war conflicts, etc. In the thinking of Habermas, the “reconstructive sciences transform a know-how into a know-what”16 and in this way what Habermas does, when dealing with international law, is to bring awareness to the analyzed legal phenomenon, in this case the international sphere, of those normative innovations that were implicit in the legal acts carried out mainly since the foundation of the United Nations in 1919 and include these normative innovations in a conception of international law inspired by Kant but which goes beyond Kant precisely because it considers the further development of international law. It can be said that there is also some confusion in the function of certain arguments that Kant employs against the world State, as if they were against the notion of the world State itself, when in reality they address only a specific form of world government. Kant argues in Perpetual Peace against a world monarchy, specifically against a heteronomously implemented world monarchy17. Kant rejects a world monarchy because of the way in which it gradually aggregates the other States of the world in itself. This is not a voluntary process, but a process guided by the use of violence and coercion by a hegemonic state. It is probable that in the background to this is the reaction to the French Revolution and the terrors that followed this revolutionary act. Pauline Kleingeld maintains that in Perpetual Peace Kant did not abandon the conception of a world State (world republic)18. It is still the solution to the problem of war. It must be remembered that the peaceful character of republics is not sufficient to ensure peace, even if it is important in guaranteeing lasting peace. Kant’s position implies an increase in the number of republics together with the federation of free States as a viable substitute for a world republic.

15

Habermas (1996), pp. 208 – 209. Edgar (2006), p. 130. 17 Kant, AA ZeF 08: 367. 18 Kleingeld (2004), p. 305. 16

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Something less evident in Kant’s proposal concerns the relationship between republicanism and the world republic and the federalism of free States. Kant’s notion of republicanism implies the a priori principles of reason: freedom, equality, and dependence19. If this is the case in the global sphere, be it federative or global state, these principles would have consequences for the treatment of the global legal institution in relation to States and in relation to individuals as citizens of the world or as cosmopolitan citizens. They (citizens of the world and of States) would need to have respected their freedom in mutual relations under a universal law as well as in their relations before their own State of belonging or even the States in which they decide to exercise their right of visit, they would have to receive equal treatment from their homeland and probably from the States in which they were allowed to stay for a certain period of time, and ultimately the decisions that compel them should depend not only on a national constitution, but probably on a global constitution, however, Kant did not further develop the specification of the nature of the federation of free States and the exact legal framework it should have, as it were, in which a world republic would be. It is important to note here that Friedrich Schlegel in a review of Perpetual Peace published in the periodical Deutschland in 1796, therefore just a year after the publication of the opuscule, defends some changes in the Kantian proposal, and therefore in the spirit of Kant’s work, even if at times against the letter of Kant’s work. He understands that perpetual peace requires not only the republicanism of singular States, but even world republicanism. Schlegel maintains that the categorical political imperative derived from the categorical moral imperative requires that all States gradually become republics or assume republican ways of governing. Against the letter of Kant’s work, or at least, against what has been considered the standard view of Kant’s thought on international law (in the words of Pauline Kleingeld)20, the world republic always remains on the horizon as a political fiction; fiction understood as an ideal, as an idea that should guide the political conduct of human beings towards a lasting peace. If we accept that Schlegel’s position does in fact represent the spirit of Kant’s thought, then one could place more emphasis on the passage in which Kant presents the ‘federation’ as a substitute and understand as Schlegel does that the world state, even if contradictory with the concept of international law, remains an ideal, because an ideal by definition is also unattainable. Also against Kant, Schlegel maintains that representative democracy is a mode of republican government. Schlegel says that not only is democracy not incompatible with republicanism, but “therefore, republicanism is necessarily democratic”21. Schlegel considers that Kant confused democracy with oclocracy when he excluded democracy from traditional forms of government that could be exercised in a republican way, since Kant thought that democracy would necessarily be exercised in a despotic way. If Kant 19

Kant, AA TP 08: 349 – 350. Kleingeld (2012), pp. 190 – 193. 21 Schlegel (1984), p. 110.

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himself had paid attention to his criterion for a form of government, which implies that every form of government is representative, he would have contemplated the possibility of representative democracy. Representative democracy is no more susceptible to being governed in a despotic way than other forms of government such as aristocracy and monarchy. Only oclocracy would be subject to a high degree of probability of dictatorship of the majority against some minority. Against Kant, Schlegel also points out arbitrariness in the inclusion criteria for citizens with the right to vote. Kant excludes from voting women and men who are unable to support themselves.

IV. From scrutiny of the Kantian outline to perpetual peace to reform of the United Nations Organization After the publication of his main work on the philosophy of law, Faktizität und Geltung. Beitrage zur Diskurstheorie des Rechtes and des demokratischen Rechtsstaats in 1992, Jürgen Habermas significantly developed his conception of deliberative democracy across national borders. He develops his conception of international law in a constant dialogue with the consolidation process of the European Union and with the project of Immanuel Kant. It is interesting to observe how, despite trying to affiliate in some way with Kant’s proposal, Habermas ends up defending a conception of international law that is much more robust than Kant’s. Kant restricted the cosmopolitan right only to the right of universal hospitality, which is the right that every human being as a citizen of the world has to visit other countries, but that right is not a right to remain in foreign countries. Much less a right to establish colonies, here it is important to remember that Kant was an emphatic critic of the system of colony establishment practiced around the world by the European countries of his historical period. In addition, Habermas states that Kant’s project was tailored to the idea of rational law and based on the historical horizon under which Kant lived22. Although it can be said that the project did not stop, given that it took shape in reality, the project would need some conceptual revisions. Habermas maintains that the normative innovations that have occurred in international law in the meantime significantly exceed what was contemplated in the proposal for a federation of free States of Kant23. The concept of peace, which Kant uses to address a peaceful world order, is a merely negative concept, linked to the idea of the absence of armed or military conflict. This negative concept fails to pay attention to the fact that wars can also be fought for reasons based on social inequalities, which is why addressing social inequalities and not just eliminating existing armed conflicts must be a permanent objective of a peaceful order 22 23

Habermas (1996), p. 192. Habermas (2004), p. 158.

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oriented towards lasting peace, as originally envisioned by Immanuel Kant in 179524. Not only did Kant restrict himself to a negative concept of peace, but he would also have ignored that both international trade and publicity could promote war and not just peace. Habermas believes that Kant imagined that international trade would be an important motivation to remove world States from the act of war. In this way, Kant would have ignored the fact that many wars are fought only for commercial interests. In summary, Habermas believes that Kant would have thought in terms not yet historical and because of that he ignored these conceptual aspects25. It must be added that Kant considered the principle of publicity as an instrument to resolve conflicts between morals and politics at the international level and thereby increase the likelihood of a peaceful global order. Habermas believes that Kant ignored that the public sphere can be not only a space for clarification, but also a space for manipulating the masses. Thus, Habermas proposes a review of the fundamental concepts of the outline of the philosophical project oriented towards lasting peace of Kant in the following aspects: first, as the concept of a league or a federation of free states is not consistent with the proposed end, namely, to ensure lasting peace between peoples. It is necessary to identify another type of legal structure that is consistent with the proposed purpose. In summary, Habermas understands that the type of legal structure proposed by Kant in Perpetual Peace and in The metaphysics of morals ceases to be accountable to the mandatory character (what is usually called Obligatio, Verbindlichkeit, Verbindung, or purely and simply practical necessity [Notwendigkeit]), which is normally present in any domestic legal order. In other words, the proposed legal order oriented to lasting peace must carry with it the idea of practical necessity involved in the idea of an obligation to comply with the rules of any domestic legal system, which may imply the threat of sanction at the international level for behaviors that deviate from the norms of international law, especially for acts of violation of human rights and the undertaking of war of aggression. Second, Kant was still linked to a concept of absolute and indivisible sovereignty, which is why the federation of free States was thought of as a union of States and not as a union of cosmopolitan citizens [Weltbürgerbund]. Kant attributed to the human being only the right to universal hospitality, it could be maintained that even when Kant defends or prohibits certain types of conduct during the armed conflict in the sixth preliminary article of Perpetual Peace26 and in paragraph fifty-seven of The Metaphysics of Morals27 he is not looking to human rights as understood today, but only the need to maintain trust in contracts, in this specific case of peace contracts, which requires a strong mutual trust for lasting peace to be possible.

24

Habermas (1996), p. 216. Habermas (1996), p. 215. 26 Kant, AA Zef 08: 346 – 347. 27 Kant, AA MS 06: 347 – 348.

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It was not by chance that Habermas argued that Kant had difficulty thinking about the issue of attribution of responsibility to people who commit crimes while providing services to the State during a war28. This only became possible after the international courts tried the acts committed during the Second World War. It can be said here that international law with regard to the mode of government necessary for the implementation of the human rights regime and the guarantee of a lasting peace, “in the meantime (…) [developed] beyond Kant”29. Although Kant did not say so explicitly, it is generally assumed that the members of a federation of free States should all be governed in a republican manner, or at least be expected that this occurs gradually. Although Kant did not say so explicitly, it is generally assumed that the members of a federation of free States should all be governed in a republican manner, or at least expected to occur gradually. Perhaps the order of the definitive articles gives the impression that all states must be republics in order to be members of the federation of free States, since the first article deals with the requirement that States gradually become republics and the second article with the requirement that a federation of free States must be established. Nevertheless, the fact is that the United Nations brings together almost all states in the world today without considering whether the government of the respective state is republican or not, democratic or not. With regard to the peaceful nature of the republics, Kant could not have foreseen the strength of the ‘nation’ idea and the resurgence of ‘nationalism’, although Habermas recognizes that this thesis was not completely false30. Furthermore, “historical and statistical [Forderungen] claims show (…) that states with democratic constitutions do not make wars less than authoritarian regimes”31. What history has shown is that democracies do not usually wage wars on each other. With regard to world trade, Kant would not have realized that commercial interests could not only be a motivation for the peaceful unification of peoples, but also a motivation for waging wars in the dispute for new markets. Trade itself could become a reason to wage war and not a reason to fear waging war. As far as the public sphere is concerned, Kant would have mistakenly assumed that the public sphere and publicity would have a role in controlling politics and this would limit war conflicts. Here Habermas seems to be referring to his free teaching thesis published as a book, The structural transformation of the public sphere. An inquiry into a category of bourgeois society, a book in which he seeks to show how the public sphere emerged as a space of transparency and public discussion based on reasonable arguments in European Cafés, but ended up becoming the opposite, namely, a means of mass manipulation with the emergence of the cultural industry. At another opportunity I have already made some considerations regarding these three criticisms of Habermas in relation to Kant’s project for a peace-

28

Habermas (1996), p. 211. Habermas (1996), p. 211. 30 Habermas (1996), p. 200. 31 Habermas (1996), p. 200.

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ful world order32, but now for the sake of brevity I would just like to note that, first, Kant’s argument does not need the absolute validity of the thesis that democracies or republics, (to use Kant’s specific term) be peaceful, there just needs to be a tendency for democracies to take a less belligerent stance, since together with the thesis of the peaceful character of republics, the institutional aspect of a free federation of States operates as a means of conflict arbitration; secondly, it does not seem obvious that Kant completely ignored the conflict-producing effects of international trade, since mercantilism was common practice in his historical period and Kant’s argument again only needs a tendency to adopt a less bellicose attitude and not an absolute necessity; thirdly, although I believe that Habermas may be more right here than in criticizing the other two trends, but it is not completely clear that the criterion of the public sphere such as understood by Kant as a means of reconciling morals and politics and as a touchstone of the legitimacy of the laws ignores that public language could be used as an instrument to manipulate the masses.

V. Habermas with Kant beyond Kant Returning now to the question of the choice of a league, congress, or federation of free States in relation to the proposal of the third part of the 1793 text, it can be said that some criticisms by Habermas against Kant’s conception are mistaken. Habermas maintains that Kant chose to replace the world republic with a federation of free States because he did not realize that it was possible to have a constitution without all the state apparatus. However, if we agree with the observation of Kleingeld33 that Kant does not reject any form of global or world state, but only a specific form of global state structure, namely, a global monarchy that imposes itself in the manner of an empire, Habermas’s argument seems to lose some plausibility. Habermas is mistaken in saying that Kant did not contemplate the alternative of a constitutional world legal order as was the case with North American society, since he makes explicit reference to this characteristic of the American federative model. It is more likely that Kant did not consider the federative model based on an American constitution as an adequate alternative to his “outline” of a project aimed at lasting peace. Habermas can be sure that the model of a federation of free States is insufficient as a guarantee of lasting peace, but obviously, Kant was not able to detail this much nor could he count on the recent historical developments, from the founding of the United Nations by the American president Wilson, when he was building his project outline. This is the reason why Habermas’s proposal with Kant goes beyond Kant in essential details of the global order aimed at guaranteeing peace. Habermas gives body and content to Kant’s cosmopolitan and republican ideal. But this content does not originate solely and exclusively from the ideas of the German philosopher and sociolo32 33

Feldhaus (2012), pp. 126 – 127. Kleingeld (2004), p. 304.

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gist, but arises largely from the developments that the outline of a project aimed at lasting peace obtained after reaching the ground of reality with the founding of the United Nations in 1919 by American President Wilson and the subsequent developments with the reformulation of the initial project in the foundation of the United Nations, the war courts in Nuremberg and Kyoto, among other relevant events. In this sense Habermas is absolutely right, the project has not stopped, history has advanced and many of the normative innovations contained in these international legal acts could not even have been imagined by the Königsberg philosopher. Habermas, on the other hand, can think in the light of recent historical developments in the sphere of international law and contemplate the need to transform the UN assembly into a type of world parliament with two houses; a house with representatives of the world’s citizens and another house with representatives of the States. Habermas can also take into account the flaws in the control system created with the foundation of the United Nations, since 1919. One example is the UN Security Council’s voting system centered on the system of vetoes by the great powers and the distortions that this system usually produces. Habermas can testify to the great risk of arbitrariness contained in this voting system and how this model puts water in the mill of political realism that accuses the human rights control system as being loaded with ideological jobs. To avoid this ideological use of discourse and the control of the fulfillment of human rights, it is necessary to carry out reforms in the Security Council’s voting system and in the constitution of the Security Council itself, in order to better mirror the system of power of the current global society. Habermas defends the inclusion of new members in the Security Council and the modification of the voting system guided by the veto of great powers, defending the voting system guided by the majority vote. Even the decisions of the great powers should be able to be contradicted by the global institution responsible for promoting peace and controlling the enforcement of human rights. Therefore, this requires the possibility of demanding compliance with the agreed decisions. For this reason, Habermas defends the creation of the UN’s own military force, in order to be able to enforce the decisions taken by the institution itself. Against Kant and beyond Kant, Habermas does not propose the abolition of permanent armies, but the creation of a world army to coerce compliance with the decisions of the current global institution that seeks to guarantee peace and implement human rights. However, together with Kant, Habermas believes that the establishment of an international institution to arbitrate conflicts is a sine qua non condition of lasting peace between States. Perhaps what Habermas really meant, as Kleingeld says, “is [that] the view that Kant should have advocated [is] a stronger international federation to be produced through democratic means”34. According to Habermas35, when Kant develops a new conception of the legal order as a means of achieving the end sought, this new legal structure is not sufficiently adequate as a means of achieving the end sought, because there seems to be no in34 35

Kleingeld (2012), pp. 190 – 191. Habermas (1996), p. 208.

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stitutionalization that is able to bind the governments of particular States. The same problem is present in some way in the current international legal order. Both the Kant federation of free States and the UN lack adequate sanctioning power for their decisions. The problem, according to Habermas36, is the result of Kantian myopia in relation to an alternative model of constitutionalism existing in its historical period. Kant clung to the specific case of the newly founded French republic after the French Revolution and failed to pay attention to the model of liberal constitutionalism in the specific case of the United States of America. The French model was still linked to the notion of sovereignty as indivisible and, therefore, would veto any type of legal organization more robust than only a federation of free States as a substitute for a world republic. The North American model contemplated the possibility of a divided sovereignty and for that reason it would be possible to think of a legal institution with competences different from those attributed to local States. Habermas maintains that the world republic as an ideal of reason with only a relative role is a false model as conceived by Kant in Perpetual Peace37. Instead, he develops a system of global governance without a world state. Thus, it can be said that, even if Habermas disagrees or considers the reasons inadequate, or probable reasons for the refusal of a global state, Habermas does not consider a global State as a solution to the problem of guaranteeing world peace and the regime for the implementation of human rights. Habermas thinks this because he believes that it is not necessary to have the state form in order to have a world constitution. Kant did not perceive this conceptual alternative between a world republic and a free federation of States or a permanent congress of States. It is interesting to note that, in spite of not assigning a state institution in the strong sense of the term, the international law system developed by Habermas has several attributes generally linked to the State, such as a parliament with two houses, supranational and coercive military power to enforce the decisions taken, a reform of the Security Council structure, among others.

VI. The question of distributive justice in the global sphere Now I intend to make a few brief remarks on the issue of global redistribution. The term cosmopolitanism is generally used in contemporary political philosophy to refer to conceptions of international law that give a very important role to the problems of global redistribution. With regard to Kant, little can be said about his position on global redistribution, since this theme does not appear in his texts explicitly. Kant is at best silent on this point. Habermas, on the other hand, cannot be considered silent on this point, he expresses himself explicitly, although Habermas clearly states that 36 37

Habermas (2004), pp. 126 – 127. Habermas (2004), p. 132.

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its discussion should not follow the path of a philosophical discussion about justice, but should be presented and discussed based on fundamental principles that are guided by the institutionally determined premises38. It remains to be considered whether Habermas recognizes the influence of international agents in the production of global wealth asymmetry and whether this factor has a direct impact on the conception of the duty of global assistance in Habermas’s thinking. In the Habermas model the problems of global redistribution are the competence of the second level, the transnational level. The reason for this result from the diagnosis made in other previous works regarding the role of globalization in weakening the State’s capacity to fulfill its obligations to provide assistance to its citizens, since the State with globalization has lost control of economic conditions. In a work such as Reconstruction of historical materialism and Time of transitions, Habermas discusses the crisis of legitimacy in late capitalism and how the process of globalization has caused deficits in legitimacy, both because of the increasing inability of the national state to deal with economic crises, and the growing complexity of today’s societies with respect to cultural pluralism. Because of this, Habermas defends the need to expand the concept of deliberative democracy beyond the domestic sphere, to the international sphere, in order to curb the systemic imperatives of the market that has slowly eroded the capacity of national States to fulfill their functions and has undermined the basis of state legitimacy. Only a cosmopolitan deliberative democracy can adequately deal with the challenges of contemporary globalized and plural societies. In this way, Habermas seems committed to a vision of international law that opposes broader egalitarian conceptions such as those defended by defenders of cosmopolitanism such as Thomas Pogge, who advocates a broader duty of global assistance to all human beings, not because they are citizens of a particular state, but because they are citizens of the world. However, unlike Rawls’s conception (Nussbaum raises this objection against Rawls’s conception), Habermas’s conception is not compromised with the hypothesis of the domestic basis for the global redistribution of resources around the globe. Habermas does not fail to consider the influence of global actors in the production of inequality in world wealth. However, it is not obvious how Habermas’s position would avoid the possibility of resulting from the deliberative democracy model applied to the global sphere only a limited duty of assistance. If the world parliament or the international agents that make up the transnational level choose a very limited duty of assistance, it could not be said that this position is not compatible with Habermas’s position, provided that all those affected are included in the group that performs the deliberation regarding this.

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Habermas (2009), p. 118.

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VII. Final considerations As it was possible to observe, Habermas started from an evaluation of the project of a cosmopolitan order, of a peaceful order, of Kant, in order to develop his own conception of international law with three levels of competence. Habermas is among the readers of Kant’s international legal thought who assumes that he rejects any kind of global state structure, although it has been shown that this interpretation is not without its problems. Scholars of Kant’s thought such as Pauline Kleingeld believe that Kant did not completely reject the world state, but only the universal monarchy. Kleingeld’s position seems to be shared by Friedrich Schlegel’s republican view that develops what at the time was understood in Germany as the spirit and not the letter of Kant’s work. Other thinkers who sought to follow the spirit and not the letter were Friedrich Schiller, Johann Fichte, among others. Schlegel maintains that the world republic is a political fiction or an ideal that always remains on the horizon of the Kantian project for lasting peace. Local republicanism, of particular states, but also universal republicanism of a world state, is necessary in order to achieve the desired end of a lasting peace. Habermas, for his part, relied on the history and recent development of international law to undertake his diagnosis of the weaknesses and achievements of Kant’s project for a peaceful world order. In this sense, Habermas could incorporate in his continuation of the draft of Kant’s project the normative innovations that emerged with the creation of the United Nations, the United Nations Organization, the international criminal courts that occurred after the Second World War, etc. With this, Habermas develops a concept of international law with Kant beyond Kant that includes reforms in the structure of the United Nations, with regard to the UN Security Council, the creation of a world parliament, the constitution of a world military force, among others.

References Edgar, Andrew: Habermas. The Key Concepts, London 2006. Feldhaus, Charles: Teria Habermas se equivocado ao ler Zum ewigen Frieden de Immanuel Kant?, in: M. C. Tonetto/A. Pinzani/D. Dall’agnol, Investigações Kantianas I: um debate plural, Florianópolis 2012. Habermas, Jürgen: Legitimationsproblem in Spätkapitalismus, Frankfurt 1975. Habermas, Jürgen: Strukturwander der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlich Gesellschaft, Frankfurt 1990. Habermas, Jürgen: Die Einbeziehung des Anderen. Studien zur politischen Theorie, Frankfurt 1996. Habermas, Jürgen: Der gespaltene Westen. Kleine Politische Schriften X, Frankfurt 2004. Habermas, Jürgen: Ach, Europa. Kleine Politische Schriften X, Frankfurt 2008.

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Habermas, Jürgen: Ay, Europa! Traduccion de José Luis López de Lizaga, Pedro Madrigal y Francisco Javier Gil Martin, Madrid 2009a. Habermas, Jürgen: Zwischen Naturalismus und Religion. Philosophishe Aufsätze, Frankfurt 2009b. Habermas, Jürgen: Zur Verfassung Europas. Ein Essay, Frankfurt 2011. Kant, Immanuel: Kants Werke. Akademie Berlin, Walter de Gruyter & Co., 1968. Kleingeld, Pauline: Approaching Perpetual Peace: Kant’s Defense of a League of States and his Ideal of a World Federation, in: European Journal of Philosophy, 12, 2004, pp. 304 – 325. Kleingeld, Pauline: Kant and Cosmopolitanism, The Philosophical Ideal of World Citizenship, Cambridge 2012. Mendelssohn, Moses: Jerusalem, or on Religion Power or Judaism, Massachusttes 1983. Mertens, Thomas: From ‘Perpetual Peace’ to ‘The Law of Peoples’: Kant, Habermas and Rawls on International Relations, in: Kantian Review, 6, 2002, pp. 60 – 84. doi:10.1017/ S1369415400001606. Rawls, John: The Law of People. With the “Idea of Public Reason Revisited”, Cambridge 1999. Schlegel, Friedrich: Versuch über den Begriff des Republikanismus. Veranlasst durch die Kantische zum ewigen Frieden, in: Immanuel Kant Zum ewigen Frieden. Mit Texten zur Rezeption 1796 – 1800, Leipzig 1984.

A constitution without a state? An analysis of the Habermasian proposal for global politics without a world government1 By Cristina Foroni Consani Political cosmopolitanism has undergone a tremendous renaissance in the past two decades. Following Thomas Pogge’s definition, political cosmopolitanism is understood as a theory committed to the concrete political ideal of a global order2. One of the main areas of dispute among cosmopolitan scholars, however, is what this global order should constitute. Some contemporary thinkers agree that any kind of global order or democracy is best approached not as a state or world government with centralized authority, but, rather, as a system of governance on multiple levels with dispersed decision-making authority. It is exactly this group that Habermas joins when he proposes in his cosmopolitan model that it is possible to have a constitution without a state. This chapter presents and analyses this thesis in three sections. The first looks at Habermas’s cosmopolitan model with its multilevel system of institutions, which encompasses the potential constitution without a state. Objections to this thesis are raised in the second section, mainly those of Scheuerman. The final section investigates the extent to which Habermas’s theory answers these concerns.

I. The Habermas cosmopolitan model and the concept of a constitution without a state Habermas’s cosmopolitan model has been studied since the late 1990s and can be found in works such as: The Inclusion of the Other (1996); The Postnational Constellation (1998); The Divided West (2004); The Crisis of the European Union (2011), and The Lure of Technocracy (2013). It is based on two main arguments: an empirical one that points to the limits of policy carried out within national states in the context of globalization; and a political-normative one consisting of his approach to globalization issues. A presentation of Habermas’s cosmopolitanism follows. 1 This research has received financial support by National Council for Scientific and Technological Development – CNPq/Brazil. 2 Cf. Pogge (2002), p. 169.

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Empirical Argument. Habermas’s description of our era deals, firstly, with the economic and political transformations in the age of globalization and, secondly, with the normative evolution of world society, pointing out potential legal and moral improvements in the global arena. Three aspects of his characterization of our time merit attention, which are: i) issues affecting sovereignty and politics between states; ii) the evolution of international law; and iii) the break with the rationalizing and civilizing process in international law promoted and carried out by the US following September 11th. a) Habermas points out that the challenges posed by globalization and by disasters of the twentieth century can be clarified by revisiting Kant’s concept of cosmopolitan justice. Globalization leaves societies vulnerable, as they organize international and domestic politics and the economy. It transforms the functioning of international public law with regard to the sovereignty of states and the sharp separation between internal and foreign policies, since private agents have acquired economic and political power that in previously periods was solely accessible to states. “Nongovernmental actors such as multinational corporations and internationally influential private banks undermine the formal sovereignty of nation-states. Today each of the thirty largest corporations operating on a global scale has an annual turnover greater than the gross domestic product of ninety countries represented in the UN”3.

In the face of such changes, Habermas calls attention to economic constraints on politics, as economies operate on a global scale, whereas political decisions continue to be made predominantly at the national level. It becomes, thus, difficult for nations to exert economic influence concerning issues such as the elimination of extreme inequality, labor and environmental regulations, and nuclear contamination, among others. b) Habermas brings up the positive evolution of international law since the end of World War II which intensified following the Cold War with the strengthening of supranational institutions (such as the United Nations (UN) and the European Union (EU)), the legalization of human rights in the Universal Declaration, and the growing importance of transnational organizations such as the World Trade Organization, International Labor Organization, the G8, etc. He argues that said changes point to the creation of the means for global governance. He is obviously not naive about the limitations of these organizations and those of the UN, which is sometimes omissive4 and

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Habermas (1998), p. 174. Regarding the UN omission, Habermas cites the case of Rwanda, in which the Security Council had been warned of the imminence of a massacre and still did not authorize an intervention, allowing the massacre of 800,000 people, most of whom belonging to the Tutsi minority. According to Habermas, this fact shows how closely the UN is still tied to national interests at the expense of the global obligations of the international community. See Habermas (2006), pp. 171 – 172. 4

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at other times limited by budgetary and organizational constraints5. However, he does call attention to important innovations in the UN Charter and the Universal Declaration of Human Rights, which show that international law is no longer merely a law of states. These innovations are as follows: a) the admission of individual citizens as subjects of international law – the preamble and Article 1 of the UN Charter, as well as the Universal Declaration of Human Rights, attributed a normative character to human rights and opened the possibility that complaints might be brought by individuals and not solely by states6; b) centralization of punitive power in the UN Security Council – the fundamental prohibition of violence is established and cannot be invalidated by international treaties; in the case of rule violations, the UN may use military violence as a police force7; c) orientation for inclusion – the UN has been opened for membership to any state complying with the foundations of the Charter and of the Declarations of Human Rights and not merely for states set up as liberal democracies. Membership, thus, is also open to despotic and criminal regimes. The price to pay is the contradiction between the declared principles of the world organization and the standards of human rights currently practiced. However, tolerance for contradictions between principles and practices opens a dialogue among countries in the West and the East and boosts greater sensitivity to cultural, ethnic, and religious differences8. c) Habermas points as well to the tendency of our era to interfere with the rationalizing and civilizing improvements arising from the juridification of international law. In his view, this rupture was caused by recent US government policy, which, following the September 11 attacks, began to ignore international law and to act in accordance with its own conceptions of right and wrong, overlapping the process of juridification in progress and promoting a kind of moralization of international politics. Habermas points to a contradiction between law and morals in international politics, where moral should be understood as the ethical values of the United States (US). Thus, normative justifications exclusive to one people replace procedures prescribed by international law. He argues that the result is a false universalism when a state “substitutes morality and ethics for positive law in issues of international justice”9. In summary, Habermas’s diagnosis of the crisis of international law shows, therefore, that states are confronted today with two inadequate models – insufficient juridification and a unilateral moralization10. Juridification has come about as a result 5 Habermas calls attention to the fact that the UN budget amounts to approximately 4 percent of the annual budget of New York City. See Habermas (2006), p. 207, note 97. 6 Habermas (2006), pp. 161 – 162. 7 Habermas (2006), pp. 163 – 165. Despite the legal provision, this has not actually been implemented, and the Security Council has allowed the most powerful member states to implement the sanctions it has adopted. 8 Habermas (2006), pp. 165 – 166. 9 Habermas (2006), p. 103. 10 Cohen (2018), p. 144.

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of legally established procedures by an inclusive but impotent global organization that takes selective decisions. On the other hand, the rules of international relations are dictated by a unilateral political order of a hegemon that presents itself as “wellmeaning”11. Political-normative argument. The Habermasian cosmopolitan project distances itself from both models. He proposes the constitutionalization of international law on democratic grounds, which would require the reformulation of the existing United Nations and the development of a project of “global domestic politics without a world government” (Weltinnenpolitique ohne Weltregierung), encompassing the notion of a constitution without a state12. The project of “global domestic politics without a world government” is closely connected to the idea that a world republic is not the sole institution capable of manifesting Kant’s cosmopolitan project. The fear that a world government might become despotic or authoritarian and that it may put pluralism and social and cultural complexity at risk, leads Habermas to draw up a cosmopolitan model based on existing institutions (e. g. UN, UE, WTO, WHO, ILO, national states, etc.). He proposes a political constitution of a decentralized world society comprising many levels, namely, those of the supranational or global, transnational and, national ones. The supranational level presupposes a world organization reformulated so as to effectively and non-selectively perform its vital functions, specifically maintaining peace and protecting human rights, without having to assume the state-like character of a world republic13. Accordingly, the UN should be reorganized as a politically constituted community of states and citizens. Here, Habermas thinks of a General Assembly or World Parliament made up of citizens and states, in which the claims of world citizens (equal opportunity and equal distribution) plus those of each national state should be taken into account14. The Security Council and the Courts of Justice should be reformulated so as to ensure that they effectively and regularly guarantee peace and protect human rights, with a real possibility of centralizing the power of sanctions and the use of troops. The transnational level is drawn from the idea of continental regimes on the model of the European Union. It would be a set of intermediary organizations, composed of conferences and permanent negotiation systems, whose global players would be empowered to act globally to tackle the difficult questions of global domestic politics, not only coordinating but also configuring, with special attention to global economic and ecological problems15. In the Habermasian model, the transnational level would be authorized to implement social justice, since the regulations at this level would be 11

Habermas (2006), p. 116. See Habermas (2001), p. 104; Habermas (2006), p. 135. 13 Habermas (2006), p. 136. 14 Habermas (2012), p. 59. 15 Habermas (2006), p. 136. 12

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charged with imposing limits on labor, goods and credit markets in order to protect workers, the environment and society in general. This transnational democratic order should be organized in a different fashion from national states. It is about thinking about an institutional design based on the concept of shared sovereignty which implies seeing both citizens and states as active subjects of sovereign power. This design is not that of a federation, in which the member states figure as constituted powers. In a transnational democracy, member states must figure as a constituting powers and, would, thus, retain greater competencies within the constituted community. Habermas proposes a constitutional convention which would comprise, on the one hand, the citizens of continental regimes (e. g. EU) and, on the other hand, states. These parts would delineate the outlines of the political union to be set up16. The national level would consist of existing national states. It would be assumed, however, that the right of sovereignty would be restricted so as to guarantee peace and the protection of human rights, as well as the economic and social guidelines established at the transnational level to boost solidarity across national borders. Democratic opinion-gathering, will-formation, and robust democratic legitimation would take place at the national level. Habermas considers that “the chain of legitimacy could extend without interruption from national states via regional regimes such as the European Union to the world organization”17. Thus, there is a model of democratic legitimation in a strong sense – one that occurs through democratic procedures located within the nation-state, and a democratic legitimation in a weak sense – that of the global arena. Habermas states that, in the postnational constellation, the three elements that were melded to form the nation-state, namely, state apparatuses, civic solidarity, and constitutions, are separate and in need of reconfiguration, because current world society is “culturally divided, and highly stratified”. Thus, he concludes, “the state in its modern form is not a necessary precondition of a constitutional order”18. Consequently, he posits that it would be a mistake to constitutionalize international law as a continuation of the development of the state, since the non-hierarchical association of collective actors (states) based on the principle of equal sovereignty (international society) would cease to exist. Instead, cosmopolitan order supranational and transnational organizations would arise to regulate a dualistic international community, composed of states and individuals. In the light of their nonstate character, supranational organizations lack the characteristic elements of states, namely, the monopoly on the legitimate use of force, the possibility of tax collection, and the military apparatus of the modern state19. Along the lines of Brunkhorst, Habermas suggests that the path to the constitutionalization of a politically organized world society would bear more resemblance to 16

Habermas (2015), pp. 56 – 58. Habermas (2012), p. 66. 18 Habermas (2006), p. 137. 19 Cohen (2018), p. 146.

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pre-modern legal paradigms in which the different layers of power of the nobility, the Church, or the cities made treaties with the king, in a sort of a “rule of law without self-legislation” than to revolutionary republican constitutions. The goal is more to contain and balance divergent political powers, thus, the paradigm of pre-modern legal traditions inspired the concept of a constitution without a state. This notion was reformulated in the liberal version of constitutionalization in the English tradition Rule of Law as well as in the German Rechtsstaat. These constitutional models aim to juridify political power, but juridification “means the domestication of power through the division and channeling of existing power relations”20, i. e., they do not lead to a rupture of existing power relations, rather, they merely create the means for controlling political power. Revolutionary constitutions, on the other hand, “overturn established powers in favor of a newly founded political authority grounded in the rationally formed will of the united citizenry”21. Habermas then compares two constitutional models: the liberal – which concentrates on the mechanisms of limiting and balancing of political power, and the republican – which emphasizes the ideal of self-government. He recommends liberal constitutions for pan-national political communities. In his words, these constitutions “regulate the interplay among collective actors with the goal of setting mutual restrictions on their power; they direct the exercise of power governed by treaties into channels that conform with human rights; and they leave the tasks of applying and developing law to courts, though without being exposed directly to democratic inputs and controls. Here the “constitutionalization” of international law does not satisfy republican standards of democratic legitimation”22.

The liberal model for the global political order differs from that of the republican constitution that Habermas outlined for national politics (and, recently, for transnational democracy, as well) focused on popular sovereignty and democratic legitimacy in the sense strong. This institutional design, precisely because it neglects to argue for overcoming sovereign nation-states in preference for their integration into a new global constitutional structure, can be considered an intermediate step between a political realism that refutes the possibility of collective political agreements at the international level23 and those more ambitious cosmopolitan projects aiming at a state 20

Habermas (2006), p. 138. Habermas (2006), p. 138. 22 Habermas (2006), p. 139. 23 The realistic position is presented by Habermas based on the analysis and refutation of Schmitt’s theses on international politics. Still on the realistic approach, Ciaran Cronin presents the following synthesis: “The classical challengers to all forms of cosmopolitanism are so-called realist positions which view international relations as an anarchic system whose actors, that is, nation-states and, in particular, ‘great powers’, are divided by unbridgeable cultural and historical differences which make durable agreements on collective political goals impossible. For realists, international relations are irreducibly competitive and international law cannot be based on anything more normatively robust than voluntary agreements; thus for realists, the idea of a ‘constitutionalization’ of international law, which would involve major 21

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or world republic.24 This intermediate position, however, attracts critique from both sides, including that of Scheuerman, who calls attention to ambiguities in Habermas’s position, as discussed below.

II. Issues with Habermas’s “world politics without world government” and the idea of a constitution without a state In his most recent writings on this topic25, Habermas has argued for a stronger democratic legitimation model within the scope of transnational democracy. This strengthening of large blocks of democratic transnational institutions with practices similar to those of the EU does not alter his belief in the possibility of a constitution without a state. When looking into transnational democracies, principally that of the EU, Habermas continues to deny the need for European states to come together to form a federation. At the global level, moreover, he feels no need to defend the creation of any central political power with responsibilities surpassing those of protecting human rights and guaranteeing peace. Scheuerman has been particularly critical of Habermas’s proposal for a global domestic politics without a world government. Ambiguities and tensions at the transnational level. In Habermas’s proposal for global multilevel governance, ambiguities arise regarding the number of elements of the traditional state that regional organizations such as the EU should have. At the transnational level, Habermas imagines a sort of political balance between great powers (the global players), which would be established through a reformed and strengthened UN operating in conjunction with powerful transnational organizations (such as the EU) or powerful countries like the USA and China. Despite starting from an apparently anti-statist position, Habermas, in fact, argues that states, although not the vast majority of existing ones, would remain important and perhaps the predominant actors in his scheme. This structure stands in contrast to the claim that nation-states can and should preserve traditional elements of their sovereignty. This is because, with the exception of the great powers capable of being protagonists in the context of economic globalization, most nation-states are likely to lack significant authority. Issues such as environmental protection, and economic and financial regulation, would be handled at the transnational level, while the protection of human

powers delegating part of their sovereignty to a supranational body, is simply at odds with the nature of the international system” (Cronin (2011), p. 213). 24 In this sense, Höffe states that a “Complementary World Republic” is essential for the universal safeguarding of the Law (cf. Höffe (1999), chapters 10, 11). Alexander Wendt has also defended the inevitability of a world state (cf. Wendt (2003), pp. 491 – 542). 25 See, for instance, “The crisis of the European Union: A response” and “The Lure of Technocracy”.

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rights and security would be left to the UN. Nation-states, thus, appear to hold residual competence, which is typical of federalist models26. Ambiguities and tensions at the global level. Despite insisting on the distinction between constitution and state, Habermas’s main target is neither states per se nor their post-national development, but a global federal republic or some type of democratic world state. Despite rejecting the idea of a world republic, Habermas also seeks a strengthened UN and a more effective Security Council capable of protecting human rights and guaranteeing peace, especially in opposition to the great powers, such as the USA currently, which tend to override international law. But how could the UN achieve such power without taking on at least some elements of the modern state? Even without a formal monopoly on violence, it seems that such a task requires a broad political and military effort to act against states that, like the USA, disregard international law when starting wars of aggression, or practicing torture and indeterminate detention. To dismiss the idea of a world state, Habermas has resorted to successful processes of historical learning that have resulted in transformations in traditional practices of state sovereignty. In The Divided West, he takes the UN and the EU as examples of institutions that have exercised their functions without resorting to a central element of states, namely, coercion. He emphasizes this in the following excerpt: “The state in its modern form is not a necessary precondition of a constitutional order. Supranational communities such as the UN or the EU do not have a monopoly on the legitimate use of force. They lack the core element of internal and external sovereignty of the modern administrative and tax-based state which provides the necessary backing for the rule of law. Yet they affirm the primacy of supranational law over national legal orders. In particular, the European law which is laid down in Brussels and Luxemburg is respected by the member states of the EU, even though it is they who hold the means of legitimate violence in reserve”27.

Even if the EU provides this apt example of observing the rules without resorting to a legitimate monopoly on violence, this cannot be easily extrapolated to the global arena. Habermas also supports the thesis that the UN could protect human rights without having to assume the attributes of a democratic state and insists that, in these terms, the UN would only promote “the clear negative duties of a universalistic morality of justice – the duty not to engage in wars of aggression and not to commit crimes against humanity”28. In his assessment, global governance does not require the transformation of the UN into a global federal republic, as its main responsibilities derive from a relatively uncontroversial and restricted universal moral of justice, namely: avoiding war and protecting human rights. Scheuerman’s question is whether, in fact, the UN could have such power without some rudimentary elements of the state. Even without a legitimate monopoly of violence, this institution would need 26

Cf. Scheuerman (2008a), p. 486; (2008b), pp. 162 – 164. Habermas (2006), p. 137. 28 Habermas (2006), p. 143.

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considerable political and military power to act against powerful states like the US. He points out that any institution that claims the authority to decide who will live and who will die requires democratic legitimacy and, perhaps, some central elements of democratic statehood29. Deficit of democratic legitimacy. Additional criticism of Habermas’s cosmopolitan model arises from accusations that it entails insufficient democratic legitimation. Habermas has been criticized for failing to recognize the state’s indispensability for implementing measures such as preserving peace, protecting basic human rights, and implementing social and economic regulations beyond national borders. SchmalzBruns (2007) argues that it is necessary to see the state, or similar organizations, as central to democracy and the ideal of self-government. He calls attention to the difficulties that arise when trying to disassociate the modern state from modernity’s political and legal aspirations. Thus, democratic equality and freedom are best guaranteed by fair and reasonable procedures that enable citizens to impact political decisions. This kind of influence can only be achieved by institutions armed with significant characteristics of the state. Similar criticisms of models of cosmopolitan democracy are brought to bear by Urbinati. She claims that the concept of cosmopolitan democracy is problematic in itself, since, at the global level, it is easier to bring themes and issues than people to the global political arena. The global scenarios, she says, “comprise interrelated issues rather than an integrated demos”30. A symbol of this distinction, in her understanding, is the vocabulary used by the defenders of cosmopolitan democracy, who insist on replacing the word “government” by the word “governance”. Thus, “[u]nlike government, governance refers to ‘policies’ rather than ‘politics’ because it is not a biding decision-making structure. Its recipients are not ‘the people’ as a collective political subject, but ‘the populations’ that can be affected by global issues such as the environment, migration or the use of natural resources”31.

Along the same line, Scheuerman stresses that participation and democratic deliberation only make sense if people can expect that their voices will result in some effective and binding measures for themselves and others. The state, or institutional arrangements like state, plays a constitutive role in this process. Thus, the idea of world politics without a world government would reduce the functions of the modern state to a sort of “unregulated decisionistic power” and would also obscure their necessary normative achievements (representation, participation, influence in decision-making processes, democratic control of political power, etc.)32. Confusion between national, transnational and global levels of decision-making. When proposing his multi-level governance model, while trying to distance himself 29

Cf. Scheuerman (2008a), p. 487; (2008c), p. 145. Urbinati (2003), p. 80. 31 Urbinati (2003), p. 80. 32 Scheuerman (2008a), p. 488; (2014), p. 423.

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from global federalism, Scheuerman alleges that Habermas confounds each levels’ competencies. What rights and duties can citizens demand at each level? Without some hierarchy between the national and post-national levels, or at least without the existence of a common judge mediating decisions at these levels, conflicts will inevitably flare up, whether between political actors or institutions, and it will be difficult to achieve consistent legal standardization. With this in mind, it can be asked whether a global federalism might not provide a more transparent approach for decision-making between different and hierarchically organized levels33. Checks and balances and concessions to political realism. One of Habermas’s challenges comes from the school of political realism and thinkers such as Schmitt. Yet, in some formulations, Habermas seems to introduce some concepts that closely resemble that tradition. He has described transnational governance as a process of political contestation between global actors (for example, regional blocs such as the EU, powerful states like the USA and China, and the WTO, etc.) which should have sufficient political and economic resources to effectively produce a system marked by a sort of balance of forces controlling conflicts of interest between actors with equivalent powers. Habermas has expressed the hope that the EU might provide a political counterweight to US neoliberal policies. In an essay co-authored by Derrida, Habermas argued that the EU should adopt a foreign policy capable of counterbalancing the US’s hegemonic unilateralism34. Such proposals echo the realistic view that only a significant balance of international power can guarantee the relatively consistent application of international law. Thus, Habermas ends up inserting elements of the realistic tradition into his cosmopolitan model. This reinforces the view that the model of global governance has, in fact, yielded substantial powers to state and similar institutions at the transnational level. This leads some critics, including Scheuerman, to conclude that what Habermas proposes is not, actually, global governance without global government, but the improvement of state authority at the transnational and supranational levels35.

III. Habermasian cosmopolitanism as a realistic utopia The critiques presented above point to some ambiguities and tensions between the three levels in Habermas’s cosmopolitan model. They also point to some issues in carrying out the project for the constitutionalization of international law without recourse to central elements of the modern state. I will next look at these criticisms from the perspective of two crucial components of current cosmopolitan democratic theories, namely, those of democratic legitimacy, and the role of state-like institutions or 33

Cf. Scheuerman (2008a), p. 488. Cf. Habermas (2006), pp. 39 – 48. 35 Scheuerman (2008a), pp. 489 – 490; (2014), p. 419.

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organizations. Not only are they essential but these elements also seem to be interconnected, since criticisms regarding the democratic deficit of cosmopolitan models are based precisely on the absence or insufficiency of decision-making institutions which should have been strengthened over the years within the context of the ideal of the rule of law. With regard to democratic legitimation, as presented in section I, the Habermasian model is based on a unitary or monist conception of legitimation, because, although the focus of legitimacy differs at each level of government, Habermas insists that the same underlying legitimacy operates at all levels36. Furthermore, with regard specifically to this point, both the criticisms directed at his first essays on the constitutionalization of international law and the international political praxis of recent times have led Habermas to advocate for a more robust model of democratic institutions. In this sense, his most recent reflections on transnational democracy, with the EU’s legal-political practices serving as examples, can be understood as an effort to delineate a model of democratic participation in a strong sense beyond the nation-state. In The Lure of Technocracy, Habermas’s criticism turns to the technocratic measures adopted by the European Council. He joins the critics of governance and warns about the need to strengthen politics in the face of the economy: “Technocratic regimes will continue to proliferate under the innocent label of ‘governance’ as long as sources of democratic legitimation are not successfully tapped for supranational authorities as well. A transnationalization of democracy is overdue. This project impinges on the relationship between politics and the market and meets the expected political resistance from economic liberals”37.

If it is true that, in opposing technocracy and giving priority to the economic rather than political, democratic elements and solidarity, Habermas ended up rethinking his transnational democracy model and emphasizing the need to strengthen spaces for democratic participation (the proposal of shared sovereignty between individuals and states as members of a transnational legislative power is one of the main characteristics of this change). Nor can it be denied that, even rejecting the idea of a state or world republic, the Habermasian institutional design, even at the global level, does not differ significantly from those pointing to the inevitability of a world state. In devising UN reforms, Habermas argues that the General Assembly should be designed as a World Parliament composed both of citizens and states. This proposal, with some variations, is also repeated in defense of a world state38.

36

Cronin (2011), p. 211. Habermas (2015), p. 57. 38 In this sense, for example, Höffe advocates the need for a complementary state or world republic. This world republic would be complementary to rather than substituting for national states. Among other proposals, he suggests that the UN General Assembly should be bicameral, also composed of representatives of citizens (cf. Höffe (1999), pp. 325 – 332). 37

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Still regarding democratic legitimacy, Habermas seems to rely on a learning process that occurs, for individuals and institutions, from the moment that the proposals for the constitutionalization of international law are first put into practice. He states: “In addition, we should not underestimate the capacity of international discourses to transform mentalities under the pressure to adapt to the new legal construction of the international community. Through participation in controversies over the application of new laws, norms that are merely verbally acknowledged by officials and citizens gradually become internalized. In this way, nation-states learn to regard themselves at the same time as members of larger political communities”39.

In this sense, the advances that have already occurred and that may still occur within the scope of cosmopolitan law (that not only has states but also individuals as subjects of rights) end up providing the foundation for a cosmopolitan political culture. Thus, it seems that the critiques regarding the democratic deficit in Habermas’s cosmopolitan model lose strength, either because of his institutional design that relies on the political participation of citizens in the decision-making processes at the national, transnational and global levels, or by the underlying trust that the development of democratic institutions at the global level will enhance a more supportive, tolerant and cosmopolitan political culture. The critique of his denial of a central political institution performing the functions of the modern state, are more difficult to dismiss. On the one hand, Habermas’s intermediate position makes concessions to both sides regarding international politics. He concedes to the political realists that it would be unrealistic and, perhaps, untenable to defend a world government which would inevitably be remote, unrepresentative, and potentially oppressive. To the other more extreme position he concedes that intermediary government institutions able to deal with issues that can no longer be resolved solely by national states are necessary. According to Cronin, the greatest strength and innovation of the Habermas project is precisely the melding of realistic and constitutional elements into a unified model40. However, Scheuerman seems to be on target when he states that, although Habermas denies the figure of the state, his project ends up depending on some central elements of modern states for its own feasibility. Two of Scheuerman’s arguments are particularly relevant, namely: a) the need for impartial judges to decide on inevitable conflicts arising between different agents at different levels of government; and b) the operations of the UN Security Council if its powers are to be strengthened. Principally in regard to the UN’s role in guaranteeing peace and protecting human rights, Habermas has emphasized the need for the Security Council to have its own army, independent of the states, so as to be able to fulfill its institutional duties with police power. In other words, even if we consider that, at the global level, we would be confronting a model of a minimal state committed to life and security, this institution would still contain the legitimate monopoly on force. 39 40

Habermas (2006), p. 177. Cronin (2011), p. 214.

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In conclusion, it can be deduced that Habermas’s cosmopolitan model tries to establish a kind of realistic utopia in the sense that it seeks an ideal model of transnational democracy by making a series of concessions to social reality. He starts from an empirical argument, which posits that national political actors have been disempowered by economic globalization, and he therefore poses a political-normative argument that in order that democracy might give voice to political actors, global democratic institutions must be created. He seeks to establish a transnational institutional design at multiple levels (local, regional and global), with decentralized decisionmaking, both in order to prevent the emergence of despotic political powers and to preserve the plurality of cultural and social identities. He, therefore, refutes the concept of a global state or a world federal republic (embodied in the notion of a constitution without a state). However, when we analyze the ambiguities and tensions in this model, a set of institutions appears to arise that, although emphatically denied by Habermas, ends up taking on the central characteristics of the modern state. In Scheuerman’s words, despite Habermas’s statements to the contrary, “his own model of global reform ultimately looks like a state, walks like a state, and talks like a state”41. References Baynes, Kenneth: Habermas’s Model for a Two-track Cosmopolitan Order, in: Ludvig Beckman/Eva Erman (eds.), Territories of Citizenship, London/New York 2012, pp. 123 – 145. Cohen, Jean L.: The Constitutionalization of International Law, in: Hauke Brunkhorst/Regina Kreide/Cristina Lafont, The Habermas Handbook, New York 2018. Cronin, Ciaran: Cosmopolitan democracy, in: Barbara Fultner (ed.), Jürgen Habermas: Key Concepts, London/New York 2011, pp. 196 – 221. Habermas, Jürgen: The Inclusion of the Other: Studies in Political Theory, Cambridge 1998. Habermas, Jürgen: The Postnational Constellation: Political Essays, Cambridge 2001. Habermas, Jürgen: The Divided West, Cambridge 2006. Habermas, Jürgen: Der Gespaltene Westen, Frankfurt am Main 2004. Habermas, Jürgen: The crisis of the European Union: A response, Cambridge 2012. Habermas, Jürgen: The Lure of Technocracy, Cambridge 2015. Höffe, Otfried: Demokratie im Zeitalter der Globalisierung, München 1999. Pogge, Thomas: World Poverty and Human Rights, Cambridge 2002. Scheuerman, William: All Power to the (State-less?) General Assembly!, in: Constellations, 15, 4, 2008a, pp. 487 – 492. Scheuerman, William: Cosmopolitanism and the world state, in: Review of International Studies, 40, 2014, 419 – 441. 41

Scheuerman (2008a), p. 491.

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Scheuerman, William: Frankfurt School Perspectives on Globalization, Democracy, and the Law, London/New York 2008b. Scheuerman, William: Global Governance without Global Government? Habermas on Postnational Democracy, in: Political Theory, 36, 1, 2008c, pp. 133 – 151. Schmalz-Bruns, Rainer: An den Grenzen der Entstaatlichung. Bemerkungen zu Jürgen Habermas’ Modell einer ,Weltinnenpolitik ohne Weltregierung‘, in: Peter Niesen/Benjamin Herborth (eds.), Anarchie der kommunikativen Feiheit. Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt 2007, pp. 269 – 93. Urbinati, Nadia: Can Cosmopolitical Democracy Be Democratic?, in: Daniele Archibugi (ed.), Debating Cosmopolitics, Londres 2003, pp. 67 – 85. Wendt, Alexander: Why a World State is Inevitable, in: European Consortium for Political Research, 9 (4), 2003, 491 – 542.

Global bioethics and the need for better international governance1 By Darlei Dall’Agnol

Introduction Many bioethical problems are global ones. That is, public health emergencies like epidemics or pandemics (AIDS, Ebola, COVID-19 and many others to come), environmental problems (especially global warming), abuse of power by transnational companies, and extreme poverty leading to mass migration, among others, all seem to require solutions that go far beyond the borders of nation states. Thus, global bioethical problems need global solutions guided by a common and sharable morality (henceforth, a CS-Morality) based on mutual care and reciprocal respect. The main concern of this chapter is to call attention to the need for better international governance if we are to solve the many global bioethical problems facing us today. In justifying the existence of nation states, one of the best theoretical approaches is to deploy political contractualism and assume that many spheres of legislative, judicial and executive powers could co-exist, for instance, in cities (municipalities), in regional administrative areas (provinces), and even in particular states within federal countries. Each of these spheres has relative legislative autonomy to pursue its own interests and to run its own public affairs. The essential question remaining is whether we also need a world or international government with state powers to solve global bioethical problems. I will here argue that nowadays there are indeed bioethical reasons to institute better global governance. To illuminate this, I will show that the United Nations (UN) is, despite providing some relevant services, failing in many respects to keep the peace, to eradicate threats to health, and so on, and that we need to reform it or to construct a global state. I will use the expressions “world state” and “global state” interchangeably to refer to a government for our planet to be constructed by humans. To sort out 1 I read a first draft of this paper at the I Colóquio Internacional Cosmopolitismo: Justiça, Democracia e Cidadania sem Fronteiras (Curitiba, 10/10/2019). I would like to thank Joel Thiago Klein and Cristina Foroni Consani for the invitation. I would also like to thank Ronald Tinnevelt, from Njmegen University, for an interesting conversation on this subject some time ago in the context of exchange NUFFIC/CAPES. Thanks also to CNPq for supporting my research on the philosophical foundations of bioethics.

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the main elements of such a proposal, I believe, for reasons that will become clear later, that we need to go back to Kant’s contractualist political philosophy. However, given some difficulties with Kant’s view, I will also examine Otfried Höffe’s recent proposal for a Kantian limited and multi-levelled global republic, arguing that such an institution should deal with global issues only and must respect most existing national arrangements. This work, then, aims to contribute to thought on how this republic should be run to solve some global bioethical problems.

I. What is wrong with the UN regarding bioethical policies? To start with, I would like to point out that most existing international declarations and especially the UN’s recommendations are directed to nation-states. To illustrate, consider UNESCO’s Universal Declaration on Bioethics and Human Rights (2005). I will not comment on the aims and principles of this declaration in detail here, but I would like to stress some of the responsibilities attributed to states as they formulate bioethical guidelines. For instance, Article 21 establishes policies recommending that transnational health research is responsive to the needs of host countries and contributes to the alleviation of urgent global problems. Moreover, the declaration holds that states should take measures to combat bioterrorism and trafficking in organs, tissues, genetic resources, and so on. Thus, there are clear roles for states, not only in accepting the principles of the declaration, but also in effectively implementing the declared policies in accordance with the common concerns of humanity beyond national borders. These concerns are certainly justified. For example, after legislation requiring informed consent was introduced in most developed countries (the Belmont Report in the US in 1978; Resolução 196 in Brazil in 1996, etc.), some powerful pharmaceutical companies began conducting experiments on human subjects in countries where there was no such requirement, which is disrespectful indeed. We must then ask: is there a juridical and governmental institution capable of restraining such multinational companies? The same question applies to dictators and even to states in an age where the climate crisis and other menaces pose an existential treat to humanity. The answer is clearly “No.” The UN is doing a great work in areas such as education and health, producing important scientific studies and related recommendations, but it is also failing in many other areas. For instance, it is incapable of guaranteeing world peace, arguably its raison d’être. Thus, there is no doubt that we desperately need better world governance. Before continuing to argue for a better global governmental system, I would like to say a little more about why the UN is really failing to accomplish its projected aims. First, its representative composition is clearly undemocratic because only five countries have the privilege of a veto in the Security Council, and five out of fifteen judges in the International Court of Justice always come from these very

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same countries. Beyond this, it is undemocratic as a whole because in the General Assembly each nation has one vote, regardless of its size and population. How can China’s vote be equal to Uruguay’s? Second, since nation-states exist in a kind of state-of-nature, that is, potentially at permanent war, the UN is incapable of preventing major conflicts between most countries, let alone powerful ones. For example, it could certainly do nothing about a war between China or Russia and Western countries. Third, the UN is incapable of punishing unlawful wars initiated by existing powers, such as the Iraq invasion. We live in an insecure world: terrorist attacks can happen at any time, anywhere; the superpowers can invade any country (violating the principle of autonomy of states) in the name of self-protection in a globalized world, and so on. Thus, I would like to ask: what is the UN doing to prevent terrorism or the deployment of biological or other weapons of mass destruction? Fourth, the UN is incapable of enforcing international justice and upholding the International Court’s decisions. Fifth, since the UN’s resolutions are non-binding, countries are under no legal obligation to implement its declarations, meaning they are often no more than statements of good intentions. Some have proposed reforming the UN in the direction of a parliamentary assembly with publicly elected representatives. Granted, the technology exists to implement this form of global democracy, and it could be a promising reform. However, I believe that we should also envisage a world governance with state powers, including an executive branch, governed by the rule of law within a democratic regime. I will sort out the main tenets of this system of world governance in the last two sections. The question I would like to deal with now is whether we need better international governance, either through a reformed UN or even a world state, not only to guarantee perpetual peace but also to prevent, for instance, environmental catastrophes, which may clearly represent the end of humanity. Now, our natural history first saw the appearance of small families and tribal groups (people or nations initially without states) and then cities. Later, we saw the formation of empires and states with a monopoly on violence, and it has recently been moving in the direction of globalization. The political arrangements which gave rise to all these political institutions may have a proper natural basis, but today’s may need to be reshaped under a proper ethical justification. That is to say, mutual care was perhaps the driving force in the formation of all these institutions, but other moral considerations such as reciprocal respect should play a bigger role if our pluralist world wants to achieve common goals such as perpetual peace and a sustainable future for the next generations. Therefore, I will now discuss the roles of different political institutions in our globalized world, starting with the question of whether we need a global state, and if we do, how best to redefine the function of nation-states and other political associations. I would like to start by analysing some suggestions for just reforming existing world institutions, especially the United Nations. Based on the preamble and the first chapter of the UN’s own Charter, the following are some proposals for reform: (i) to make the Security Council’s decisions accountable to the General Assembly, that is, to strengthen the (rudimentary) legislative power; (ii) to enhance the respon-

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sibilities of the International Court of Justice, making it the Highest Court to judge, for instance, the Security Council’s decisions and policies; (iii) to abolish the special veto privileges of the five permanent members of the Security Council; (iv) to make the decisions of an International Criminal Court binding and give it the authority to punish serious crimes; (v) to abandon the “one state, one vote” principle, since small states are overrepresented (and big ones underrepresented), and begin to consider population; (vi) to establish a second chamber of the world parliament, a World Congress, as the global representation of citizens; (vii) to take into account the continental level and sub-global organizations (e. g., the European Union), but still respect large-scale regional institutions; and (viii) to transform international institutions into supranational powers, developing them into a full legislature, a full executive and a full judiciary, and giving them the authority to coordinate and sanction by means of military, civil and police measures. Some of these reforms are clearly necessary to achieve a greater level of democracy, especially a stricter separation of powers. The philosophical debate on the need for a world state or a similar institution began centuries ago but has intensified recently. It seems clear that the UN is, as I argued above, failing to achieve its main goals, especially to secure long-lasting peace, and that there is a real case for reviewing the way it was created and shaped, that is, as a confederation of free nations instead of a global state. It needs, at least, profound reform, and I believe we must not need to wait for a new world war to see that happen. What, then, is the best way of organizing more effective world governance? A confederation of states or a global state?

II. Back to Kant: the contractualist justification of a state To answer the above questions, I would like to return to Kant’s political philosophy for theoretical guidance, since his contractualist theory can help us to understand why we need better world governance. Kant is usually interpreted as a thinker who supports just a league of nations2, as perhaps represented by the UN nowadays, but a more careful reading can show that this was not the only option he considered. Kant argued that only states with a republican constitution could be part of such a supranational political arrangement, but how should it be shaped? Granted, in his Doctrine of Right, first published in 1797, in the chapter on “The Right of Nations”, after recognizing that states are in a lawless state-of-nature, he wrote: “A league of nations in accordance with the idea of an original social contract is necessary, not in order to meddle in one another’s internal dissensions but to protect against attacks from without. … This alliance must, however, involve no sovereign authority (as in a 2

Cf. Kant, 6: 344; 8: 354.

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civil constitution), but only an association (federation); it must be an alliance that can be renounced at any time and so must be renewed from time to time”3.

Let me consider a league of nations as “Kant’s official view.” This is at least how he is normally interpreted, that is, as not supporting a world state4. Again, perhaps the UN represents such a political arrangement despite de fact that not all member states are, as Kant required, republican. It would, however, appear that the logical consequence of recognizing that states are in a lawless state-of-nature is that they will, in analogy with natural individuals, form a single sovereign authority. Kant denies this implication. Why? Mainly because, as we will see, such a world state could become a “soulless despotism”5. But is there any way to avoid such a negative outcome? Before answering this question, I would like to point out that Kant in fact considered other possibilities. In Toward Perpetual Peace (1795), he made a clear distinction between what is correct in thesi and what is correct in hipothesi6 on the issue of a world republic. Thus, he distinguishes two kinds of pact: a peace pact (pactum pacis) of nations, which aims to end particular wars, and a pacific league (foedus pacificum), which “seeks to end all war forever”7. Now, a pacific league has practicability and from alliance to alliance “would gradually extend further and further”8. For pragmatic reasons, then, Kant supported just a pacific league, which is correct in hypothesi, but this seems not to be the only alternative. To recognize this point, it is crucial to bear in mind that there is also the requirement of reason itself, which is the highest moral legislative power and establishes what is correct in thesi; that is, it delivers an absolute condemnation of all wars as a permanent condition and not just particular ones. To quote Kant9: “In accordance with reason there is only one way that states in relation with one another can leave the lawless condition, which involves nothing but war; it is that, like individual human beings, they give up their savage (lawless) freedom, accommodate themselves to public coercive laws, and so form an (always growing) state of nations (civitas gentium) that would finally encompass all the nations of the earth. (bold added)”.

Clearly, the reference here is to a state of nations (Völkerstaat, in German, not only ein Völkerbund). Was Kant then contradicting himself? Was he just ambiguous? Did he change his views from one work to another?

3

Kant, 6: 344; italics added. Rawls (2000), p. 10. 5 Kant, 8: 367. 6 Kant, 8: 357. 7 Kant, 8: 356. 8 Kant, 8: 356. 9 Kant, 8: 357. 4

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Kant knew that existing states would resist his project of perpetual peace and many would, in fact, reject his proposal, maintaining their own right to go to war. But still he would insist that perpetual peace is a moral requirement of reason itself. Thus, I will from now on argue that perpetual peace requires a state of nations as a moral requirement for the best political arrangement. Let us call this “a Kantian view”. I would like to present two main reasons to support this Kantian view. First, we need to ask what kind of world government Kant’s political philosophy could in principle support. Now, in his Perpetual Peace, he laid down “preliminary articles” for perpetual peace among states such as that standing armies shall in time be abolished, and that no state shall forcibly interfere in the constitution and government of another state. He then went on to postulate some “definitive articles,” establishing that the civil constitution in every state shall be republican. According to Kant, republicanism is simply the political principle of separation of the executive from the legislative power10, together with the representative principle11. What Kant wants to avoid, then, is an absolutist power, a universal monarchy, which could turn despotic and paternalist12. But it seems clear that what is correct in thesi is a state of nations or a world republic (a civitas gentium) that encompasses all the world’s nation-states. In Kant’s own words: den Republikanism aller Saaten samt und sonders (a republicanism of all states together). That is to say, from a Kantian point of view, only such a republic, a civitas gentium, could bring perpetual peace as a permanent condition. Nowadays, we have even stronger moral reasons to support this idea, that is, not only to guarantee perpetual peace, but also to save humanity from environmental catastrophes and other global problems. I will return to this point soon. The second reason is that the task of building up a world republican state is, in Kantian terms, nothing less than a moral obligation. According to Kant’s notion of public right, “the continual approximation to it [perpetual peace] is a task based on duty and therefore on the right of human beings and of states”13. Thus, it seems clear that actual perpetual peace can only be achieved by a world republican state as a rightful permanent condition. It is a moral duty to make it so. In Kant’s own words: “Now morally practical reason pronounces in us its irresistible veto: there is to be no war, neither war between you and me in the state of nature nor war between us as states, which, although they are internally in a lawful condition, are still externally (in relation to one another) in a lawless condition; for war is not the way in which everyone should seek his rights”14.

10

Kant, 8: 352. See Ribeiro dos Santos (2010), for clarification on this issue. 12 Kant, 8: 367. 13 Kant, 6: 350. 14 Kant, 6: 354.

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The moral imperative “Es soll kein Krieg sein!” (there is to be no war) cannot coexist with a state’s supposed right to go to war. Thus, the ultimate global-political end can only be achieved through a world republican state. This is what can be inferred from a Kantian contractualist political theory as a whole. Even if one doubts that this is the best interpretation of Kant’s view, there are reasons to believe that he would not reject a world republic as a moral requirement to guarantee perpetual peace if it is capable of avoiding despotism. The proposal in the next sections aims to meet this restriction. Now, in Kant’s time, humanity was not in grave danger of destroying itself. Thus, perpetual peace was the only political aim of world governance. Today, however, this is no longer the case. I would therefore like to examine the issue of environmental crises in more detail to illustrate the scope of responsibilities for caring globally, perhaps through a world state. Thus, I will begin by saying that one of the main goals of the Conference 2015 UN Climate Change (COP21) was to reach an agreement on global warming, especially on greenhouse gas emissions, to limit the global temperature increase to 2 degrees Celsius above pre-industrial levels. Following Rio-92 and after more than 20 years of negotiations, the Conference had a unique opportunity to enact the first legally binding document (but with no penalty for the countries not complying) for all the world’s nation-states. This was certainly a significant step, a “turning point” in caring more for our little planet, which is after all our home. As citizens and philosophers concerned with environmental issues, we should support and try to help bring about such an agreement. However, there are already signs that some countries are evading their responsibilities. And we do need to worry: the last five years have all broken the record of average global temperatures. Thus, what was accomplished by COP21 is perhaps too little, too late. More importantly, the final document stipulates many “voluntary” actions, but no punishment for those not complying with the targets. What will happen if countries do not contribute to keeping the temperature “well below” 2 degrees hotter? It seems easy to reach an agreement with legally binding force without a global power to enforce it. But it seems clear that better global governance is urgently needed to save our planet. The need for change in the international law and on global governance is urgent. Recent developments in world history have shown again and again that nation-states are in a state-of-nature. Consider some examples: Western countries illegally invaded Iraq to impose representative democracy and a free-market, capitalist economy; China is worrying its neighbours with its new military capabilities in the South China Sea; Russia is once more seeking to expand its federation and is investing in new nuclear weapons; the EU is expanding towards the East; Israel and its surrounding Muslim counties are unable to achieve peace; India and Pakistan are nuclear powers in constant tension, and so on and so forth. The security problem is as real as it is for individuals in a state-of-nature. The best solution seems to be institutionalizing a higher power and transforming the UN’s structure, roles and policies, perhaps in the direction of a world republic.

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We cannot underestimate the price of omission. The League of Nations was created after the First World War, and then replaced by the United Nations after the Second – but this is also failing – and I do not think we should wait for another nuclear world war to create more effective global governance. Only a better world governmental system will be able to promote perpetual peace by dismantling weapons of mass destruction and providing the basic necessities for everyone to lead a decent life. As I argued above, the UN needs major reform also because it is undemocratic and ineffective. It is based on sound principles such as peacekeeping and security, promoting cooperation in economic and social affairs among its members, and guaranteeing respect for human rights. It is, however, powerless to enforce the decisions of the Assembly. The veto power of the permanent members of the Security Council makes it ineffective in security policies. The UN in fact has a poor record in peacekeeping. Where was the UN as Syria’s crisis escalated? We need to rethink its role, perhaps towards a world republic. A better system would still comprise autonomous states, but, unlike the UN, it would not have only advisory powers and would not be undemocratic as the Security Council is today. No party would have a right to veto. To return now to Kant, we need to establish all the contractualist implications of his political philosophy. Even if the above interpretation may be questioned and Kant’s final and official view on this matter was for a provisory league or confederation of nations, it seems clear that (i) we have nowadays more moral reasons than he did to institute effective global governance and that (ii) a Kantian contractualist political philosophy makes room for extracting such a practical implication while avoiding the negative outcome of despotism. That is to say, if it is correct that states are in a state-of-nature (like individual human beings) and that it is better for them to leave this condition of lawless freedom, then nation states (in danger of permanent war) must create higher institutions and act under public coercive laws. Such institutions must have state powers. Why can it not be just a league of nations? In short, there would be no sufficient coercive power to effectively enforce international laws, as the setup of the UN reveals nowadays. Now, the supposed danger of despotism (Kant’s main worry) is common to both individual states and a global republic, so it is not sufficient reason to remain in the current state-of-nature. Additionally, there must of course be measures to avoid despotism (as represented by the universal monarch) or a return to anarchy. Therefore, there is no logical or practical impediment to inferring that from the state of nature among national states and the moral requirements to overcome it a global state can be created. How can a Kantian political philosophy guide us on this issue? That is to say, how can contractualism, inspired by Kant, justify better world governance, and eventually a global state? I will present a Kantian proposal in the next section. Clearly, the main concern must be to avoid the difficulties that Kant himself rightly highlighted, especially despotism. As we will see in section 4, my proposal for the composition of the executive branch of a global state takes measures to avoid the perils of despotism.

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III. A Kantian proposal In this section, I will sort out a Kantian path to better global governance based on a moral argument, which means above all that it will not be a universal monarchy, but a world republic. That is to say, I reject the idea of a unified global state, defending instead, following Höffe (2007), a limited and multi-layered form of world government that maintains the sovereignty of most present-day nation states. It is crucial, however, to realize that it is no longer only the goal of achieving perpetual peace that justifies such a global state or similar institution. In Kant’s time, one could perhaps – as he in fact did – think that cosmopolitan right shall be limited to conditions of universal hospitality only. That cannot be the case any longer since what a country does to the environment affects all other states. Our world is a lot more complex today: environmental issues are of everyone’s concern. Climate change due to Amazonian deforestation has consequences everywhere on our small planet. The extinction of species is jeopardizing biodiversity. Parts of the world are not being cared for properly; for example, vast swathes of ocean are looked after by no country. Global warming caused by the industrialization of now rich nations is affecting the poorest. Even human life on this planet is at risk since we really seem, to use Parsons and Savulescu’s expression, “unfit for the future”. Furthermore, technology is being used to destroy life, such as with the AI used to produce killer robots. It is certainly not wise to create the technical conditions to end humanity. Therefore, the solution must be global, at least, in preventive terms, to provide a better environment for all. I would now like to present in a more detailed way a particular proposal for better world governance, namely the idea of a subsidiary and federal world republic, sometimes also referred to as a “complementary world republic”15. I am very sympathetic to this multi-levelled statehood, which I agree is required for the globalization of the principle of the rule of law, that is, for global justice. I will not comment on Höffe’s identification of several other global models: from the communitarian one (small, self-sufficient groups without international law), through the realist model (international laws without a supranational state), to a statehood with gradations (either ius gentium or a limited international law of states of equal status), or a cosmopolitan (a world state that abolishes all national borders) or a homogeneous world state (where one individual state has hegemony), and all the criticism he addressed to these models. Instead, I would just like to underline his somewhat Kantian idea that a state is, above all, an embodiment of public powers that serve the law. It is important to bear in mind that most of the usual criticisms of a world state, namely, that is it utopian, superfluous, unfeasible, tyrannical, ungovernable, and so on do not apply to a subsidiary and complementary world republic. The basic idea of the book Democracy in the Age of Globalization is that we must seek a constructive compromise between communitarians and globalists:

15

Höffe (2007), cf. especially chapter 10.

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“On the one hand, globalism demands, quite justifiably, a global governing body, but it unjustifiably dissolves individual statehood. Communitarianism, on the other hand, unjustifiably rejects a global state but justifiably defends the need for differentiation. The constructive compromise is a global democracy that allows existing democracies to retain extensive rights and introduces an additional ‘continental’ level of government”16.

Thus, a multi-levelled global governance can be slowly implemented, can be respectful of differences and can guarantee that particular states have the right to remain autonomous legislators within their own jurisdictions. Only genuinely global issues will be the concern of a multi-levelled world republic. Individual states need not be dissolved and would remain autonomous to run their jurisdictions. In other words, we should reject the idea of an entire global society controlled hierarchically from one centre (a kind of global Leviathan), for instance, an absolute monarchy. Höffe believes that to achieve such a world republic we need a dual global social contract: “The agreement that overcomes the international state of nature, the ‘international-law social contract’, is the means by which the world republic justifies itself to the states of the world; the agreement that overcomes the global-civic state of nature, the ‘global-civic social contract’, is the means by which the world republic justifies itself before the citizens of the world, the individuals themselves. In both cases a universal capacity to consent and a distributive-collective advantage are crucially important”17.

In this respect, Höffe’s proposal relies also on a Kantian political philosophy. I will not comment here on the particular institutional arrangements that Höffe deems necessary for such a resulting subsidiary and federalist world republic (e. g., a World Senate and a World Congress, etc.). Instead, I would like to say how the executive power could in my view be framed, and afterwards I will sort out some possible priorities for this institution. I believe Höffe made an important contribution to rethinking world governance. We have already seen the problems with the current main institution: the UN makes only recommendations; it is undemocratic; it is falling to keep the peace, and so on. That is not to say we must simply get rid of it and retreat to nationalism. On the contrary, we must work to perfect world governance. For these reasons, the proposal of a subsidiary and federal world republic looks attractive. I will now comment on how it may work to solve some global bioethical problems.

16 17

Höffe (2007), p. x. Höffe (2007), p. 218.

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IV. Rethinking world governance In this last section, I will sketch a new arrangement for what I believe could bring about better world governance, especially the executive branch of a world republic with the ability to avoid despotism. I believe we first need to support the formation of confederations, that is, of supranational, continental political arrangements such as the European Union with state powers framed around a republican constitution. Afterwards, we can stimulate the formation of the union of such confederations to form the executive body for the world republic. In what follows, I will therefore sort out the composition and workings of such a governmental body in order to achieve greater democratic settlement and for it to function without despotism or anarchy. I believe that a world republican executive power can, considering the formation of more and more unions of nation states such as the European Union, the African Union, and so on, be implemented gradually. Of course, this process will take some time. However, we could start now with one representative of each of the main continents, namely Africa, the Americas, Asia, Europe and Oceania/Australia, for an executive power of 5 years (each continent having the presidency for one year). Later, it could be reshaped, incorporating perhaps more administrative zones. Obviously, representatives would be democratically elected and work as a collegiate board. Together with an effective global legislative power and an enforceable global judiciary system, this could implement many urgent world-wide policies. Consequently, the executive power of the world multi-levelled republic would form a kind of “Global Union of Confederations” with state powers. A multi-levelled world republic needs to be conceived as a state-power to have the monopoly on the legitimate use of a special kind of force, that is, only it would have military power, ending conflicts between states forever. Thus, it is time to implement Kant’s condition for perpetual peace, namely that standing national armies shall be abolished altogether18. This may sound foolish, but some countries have already abolished their militaries (e. g., Costa Rica, since 1948). Rather, we would be foolish if we continued to accept the present system of national apparatus of nuclear weapons, which may cause a world war by mistake or through the malfunctioning of autonomic systems. It is, then, wise to eliminate the means of our own potential destruction by creating a better world government. Now, supranational unions and particular states could still have civil police forces but only to provide domestic and local security. Such a world republic is also needed for economic reasons, for instance, to unify taxation across the planet and avoid tax evasion and fiscal paradises, especially for big international corporations. The existing industrial and commercial big corporations cannot only benefit privately from globalization; they must contribute more to global justice. But the main reasons are moral: to enforce justice at the international level; to punish state invasions; to prevent the deployment of nuclear and other weapons of

18

Cf. Kant, 8: 345.

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mass destruction; to end global poverty or, at least, misery and to solve environmental crises. The political ends of multi-levelled political institutions can be roughly distributed accordingly: cities should provide the common good locally (caring for primary safety, fundamental education and basic health care); nation-states would take care of the common good nationally (fostering security, education, health care, the administration of domestic justice, and major infrastructures in energy, communication, commerce, agriculture, industry etc., connecting cites); confederations of states would provide the supranational - continental - common good (commerce among nation-states and globally); and, finally, the world republic should provide the common good globally, for example, by tackling the environmental crisis, disarming all nuclear states, avoiding unsustainable population increase, and so on. A world republic would also be responsible for the all the oceans and the two poles as well as space exploration. All these domains must be run democratically. If we are really serious about achieving permanent world peace, constructing a fairer planet free from extreme poverty (e. g., by instituting a universal basic income as proposed by Parijs, 2003), solving the environmental crisis, creating a sustainable future in economic terms, preserving pluralism and the diversity of human cultures, avoiding destruction by technology, and so on, what global bioethics and a sound political philosophy require from a CS-Morality perspective is the institutionalization of a political body capable of effectively achieving these goals. All this is perhaps best achieved by a multi-levelled world republic. This could also solve many global bioethical problems. For example, the institution could be responsible for providing legislation that is lacking concerning, for instance, global policies for biomedical genome editing (CRISPR-cas9) and its potential eugenic and post-human misuses. To the objection that the main arguments for a world republic are the result of wishful thinking only, a philosopher’s daydream, and many other similar objections19, I would like to give a brief defence here. From Plato’s Republic onwards, thinkers have projected models of better societies. This is not the result of naïve optimism but has to do with the belief that we need normative models based on ideal standards of, for example, justice to assess, judge and transform our current practices and social institutions. Plato’s defence of, for instance, equal public education for boys and girls is still a challenge to many practices around the world. In this sense, there is no end of history and we are continuously, even if as Sisyphus, trying to construct a better place to live. The self-proclaimed Realpolitik is perhaps just an excuse for trying to implement crude power in politics and international relations. Finally, I would like to point out that while this proposal is a preliminary one, it seems to be a clear outcome of the main moral and political ideas defended in this chapter, namely a CS-morality based on mutual care and reciprocal respect and a Kantian contractualist political philosophy grounding democracy as the best form 19

Cf. Tinnevelt (2012).

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of governance in our globalized world. The main conclusion of this section, then, is that it is wise to overcome present-day global bioethical problems by building a better world governance along the lines of a multi-levelled world republic.

V. Final remarks In this chapter, I have argued that nowadays there are sound bioethical reasons to institute better global governance. Issues such as pandemics, climate change, and so on require international coordinated actions. To demonstrate this, I maintained that the UN is, despite providing some relevant services, failing in many respects to keep the peace and to eradicate threats to health, and that we need to reform it or to create a global state. To discuss the main tenets of such an institution, I went back to Kant’s contractualist political philosophy. Now, in his time perpetual peace was perhaps the only good reason to create a world institution capable of enforcing international law, but today there are many other problems presenting an existential threat to humanity that require a world state if we are to solve them. To avoid the perils pointed out by Kant that such an institution could face, I proposed a Kantian limited and multi-layered republic. Such an institution would deal with global issues only, respecting existing supranational, national, and other regional political arrangements. The executive branch of such a republic would democratically be shared initially by representatives of the main five continents. The problems we face today are huge, but the solutions are at hand. If we are to survive as a species, we need to come together and act quickly. The present political state of affairs must be overcome since many countries are evading their responsibilities regarding climate change, pandemics, and so on. We must not need to wait for a new war of all against all at the international level (perhaps World War III) to create effective institutions to maintain permanent peace. It is time to work for the construction of a better world by creating the political conditions for effective global governance. This is the only way to guarantee peace and prosperity for our own and future generations. References Coicaud, Jean-Marc et al.: The Globalization of Human Rights, New York 2003. Engelhardt, Tristram (ed.): Global Bioethics, The Collapse of Consensus, Salem 2006. Jahr, Fritz: Bio-Ethics, in: Amir Muzur/Hans-Martin Sass (eds.), Fritz Jahr and the Foundations of Global Bioethics, Berlin 2012, pp. 1 – 4. Guyer, P.: Kant, London/New York 2006. Hobbes, Thomas: Leviathan, Cambridge 1992. Höffe, Otfried: Democracy in an Age of Globalisation, Dordrecht 2007.

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Kant, Immanuel: Practical Philosophy, Cambridge 2008. Kant, Immanuel: Werkausgabe, Frankfurt am Main 1968. Leopold, Aldo: The Land Ethic, in: M. E. Zimmerman et al., Environmental Philosophy. From Animal Rights to Radical Ecology, New Jersey 1993, pp. 102 – 115. Locke, John: Two Treatises of Government, Cambridge 1994. Naess, Arne: The Shallow and the Deep, Long-Range Ecology Movement, in: Inquiry, 16, 1973, pp. 95 – 100. Mouffe, Chantal: The Democratic Paradox, London/New York 2000. Persons, Ingmar/Savulescu, Julian: Unfit for the Future. The Need for Moral Enhancement, Oxford 2014. Parijs, Philippe van: Real Freedom for All. What (if anything) can justify capitalism?, Oxford 2003. Pogee, Thomas: World Poverty and Human Rights, Cosmopolitan Responsibilities and Reforms, Cambridge 2008. Potter, Van Rensselaer: Global Bioethics. Building on the Leopold Legacy, East Lansing 1988. Rawls, John: The Law of Peoples, Cam./London 2000. Ribeiro dos Santos, Leonel: Kant: da reinvenção do Republicanismo à ideia de uma “República Mundial”, in: Cadernos de Filosofia Alemã, 2010, pp. 13 – 54. Tinnevelt, Ronald: Federal world government: the road to peace and justice?, in: Cooperation and Conflict, 47 (2), 2012, pp. 220 – 238. Tugendhat, Ernst: Vorlesungen ueber Ethik, Frankfurt am Main 1984. Tännsjö, T.: Global Democracy: the Case for a World Government, Edinburgh 2008. Widdows, Heather: Global Ethics. An Introduction, Durham 2011. Wood, A. W.: Kant, Oxford 2005.

Cultural cosmopolitics in Latin America: the case of Cumbia By David Hoyos García It was 1823 when the French doctor and expeditionary Francoise Désiré Roulin was near the banks of the Magdalena River in the territory that not long ago had declared independence from the Kingdom of Spain under the name of Colombia. In an event he observed there was a meeting of slaves and Indians next to a thatched hut with a door ajar. Two slaves were moving their bodies to the sound of the music of a tumbadora, a bagpipe and an ox jaw played by another slave and two Indians. Six women, two of them indigenous and the other slaves, applauded around the men who were dancing. On a later plane, Désiré Roulin observed the Magdalena River. They were gathered there to watch or accompany the body of a white boy dressed in a tunic and holding a cross in his hand on a table. A half-breed woman sat weeping at the foot of the mound. This scene is depicted in Bords de la Magdelaine. Le bal du petit ange (Shore of the Magdalena. The little angel’s ball), a watercolor he painted in 1823. The sadness of the child’s death contrasted with the ritual of music and dance. The open space, the bohio and the grounds show that this was a practice of social and racial segregation. This watercolor could be one of the first visual references to what a few years later would be called “cumbia”. The scene captured in the image indicates indirectly that what is happening is not reduced to a representation of a series of melodies articulated instrumentally, nor is it a form of dance that emerges sporadically. The image proposes to understand this cumbia as a set of practices, melodies, dance, religious ritual, a moment of celebration or courtship, or a moment of dispersion. The characters act as exclusive interlocutors through the arrangement of their bodies and their voices, in a hybridism of practices permeated by each other, on a specific time and space. This shows that those uses of musical practices come from social habits rather than aesthetic functions. Tia DeNora, argues that “[m]usic is part of the cultural material through which ‘scenes’ are constructed, scenes that afford different kinds of agency, different sorts of pleasure and ways of being”1. Bords de la Magdelaine. Le bal du petit ange refers us to the issue of the validity and importance of the possibility of exploring the range of relationships that occur in the dialogue of musical practices with other practices such as dance, singing and funeral rituals, to name a few.

1

DeNora (2000), p. 123.

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Figure 1. Bords de la Magdelaine. Le bal du petit ange (Shore of the Magdalena. The little angel’s ball), Franc¸ ois De´sire´ Roulin, 1823.2

We can argue today that cumbia no longer takes place only in a territory like the one Désiré shows in his painting, an embankment on the shores of the Magdalena river. His European and romanticized vision of the Americas is just as distant from what might be happening at a similar time in the Palenques, territories that sheltered runaway slaves and to which no white or mestizo could gain access. However, his painting gives an idea of the origin of cumbia: if the painter portrays the practice at that time and specific moments (shores of the Magdalena River, 1823), it is because this practice has previously taken place, even during the 18th century. I bring up this example as a stimulus to talk about cosmopolitanism applied to cumbia, specifically, how the process of popular cultural appropriation inherent to cumbia functions as a consolidator and vehicle for the reformulation of traditions not only locally, in Colombia, but throughout its territory and beyond its borders from South to North America, including Brazil, and how this acquires social legitimacy through dominant cultural consumption, specifically in the so-called “world music”. 2 Bords de la Magdelaine. Le bal du petit ange (Banks of the Magdalena. The Dance of the Little Angel). By François Désiré Roulin, 1823. Watercolor on paper. 20,3 x 26,7 cm. Collection of the Bank of the Republic of Colombia. Registry number AP4077.

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This example of a historical text by Dèsiré allows a critical position on the study of cumbia. Today, cumbia, as a musical practice, appears in a multiplicity of specific moments and spaces, in some cases uniting and in others maintaining the divisions of identity and social class. That is why it is not enough to approach cumbia only as a musical genre or style or as a dance as it has traditionally been done. Nor is it feasible to approach it as a series of exclusive practices that originated in Colombian territory since cumbia is more than a rhythm or musical genre, or a dance with defined steps, or a poetic composition. It is not possible to approach cumbia today only in this way since cumbia offers the possibility not only of being a subject but also a tool for study to understand how contemporary society, particularly Latin American society, can be read. Cumbia, as a set of practices, is today a dialectical tool that allows the expression of the vicissitudes of a reality not only Colombian, but also Latin American or Pan American since it informs the dynamics of a society in categories such as city or rural, diaspora and body. Academically, cumbia has been counted from ethnomusicology, which limits it to be studied as a purely musical phenomenon in context. Since ethnomusicology is a science derived from musicology exclusively to study “ethnic music”, we are in a field of a post-colonial hierarchy, that is, for the hegemonic academy it is necessary to divide music from ethno-music. And this is a first problem derived from cosmopolitism. It is necessary then, in the first place, to end the division between music and ethno-music, and to approach all its study from musicology. In the case of cumbia, this area of the human sciences has analyzed its musicality, such as the changes in harmonies, rhythms and instrumentation; and it answers the questions about how cumbia, as a rhythm or musical genre, accounts for that specific aesthetics. Musicology also draws on anthropology insofar as, in order to make musicological analysis, it even starts from the question of what music is3 and takes into account that the answer to this question varies depending on the point of reference. In fact, the basic question of musicology lies in the human capacity to create, act, organize cognitively, react emotionally and physically, and interpret the meaning of sounds made by humans4, which defines us as musical beings5. Thus, an approach to cumbia from musicology makes us understand that we approach it as musical beings6. 3

Rice (2014), p. 2. Rice (2014), p. 2. 5 Tymothy Rice clarifies that “Musical” does not refer to the talent or ability to play an instrument; rather, it refers to the human capacity to make sense of sounds (Rice (2014), p. 2). 6 The division between musicology and ethnomusicology has to do with the territories and the human groups that make music. This is that musicology has traditionally made cultured music its field of study, while ethnomusicology according to Timothy Rice deepens the study of the musical being in ethnic groups within a non-western tradition (9). This point of view, of considering regional music, among them the cumbia, as not circumscribed within the western tradition, limits its approach from the academy. Also, reducing regional music to the merely 4

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I affirm, however, that musicology (and ethnomusicology as it is studied up to now) is not sufficient for the study of cumbia since its analysis starts from cosmopolitan hegemonic positions that assume that the music generated in the South starts from realities of otherness as ethnic or “third world” contexts so as not to call them “tribal”. This makes cumbia (among other cultural manifestations), as a musical rhythm, be studied as a sonority adapted for globalized consumption under the category of world music. This position of musicology is cosmopolitical insofar as it considers these musics politically necessary to promote economic globalization and, as Gilbert & Lo say, to replace multiculturalism as an ethnoracial management strategy (17). So leaving cumbia in the hands of musicology alone would run the risk of approaching it through an aesthetic and consumer cosmopolitanism, a commodity that celebrates aestheticization, the commodification of cultural difference, or the extension of Western values as a network of universal behaviors: “‘[W]hite multiculturalism’ also produces a particular kind of Cosmopolitan subject, an urban (and urbane) person who is defined by modes of consumption: the ‘cosmopolite’ is ‘a class figure capable of appreciating and consuming ‘high quality’ commodities and cultures, including ‘ethnic’ culture”7.

Musicology or ethnomusicology approaches musical expressions that, in general, imply “an asymmetry between the origin and the areas to which they move”8, which in the case of cumbia is contradictory because the path it has followed through the Americas reflects the crossing of borders at the hands of marginal communities. History, anthropology and sociology also provide insights in this area and, in fact, serve as a tool for musicological analysis as well. Since historiography, much has been done to explain the origin of cumbia, but this has been an exclusively localistic exercise and has not contemplated the fact that cumbia includes, in our contemporaneousness, a much larger territory than the Colombian Caribbean since cumbia today is Pan-American and cross-border. Cumbia has moved intercontinentally and has permeated the different social strata with its lyrics, its instrumentalization and its performance despite its rhythmic and lyrical simplicity. Cumbia in this section is the departing point for the analysis of the relevance of approaching cultural practices from a cosmopolitan perspective. For this reason, I argue that cumbia (as I mentioned, among other cultural practices) is not only a set of cultural devices, but also a set of practices: an ecology. That is, cumbia is not only the devices or artifacts that musicology speaks of, that is, instruments, musical harmonies, clothing, lyrics, and topology; cumbia is also the set of relations of musical sphere cuts off all dialogical, anthropological and cultural possibilities, and it is at this point that an approach to cumbia (as an example of these so-called “regional music”), considering it in its entirety of practices, is of great academic utility. 7 Ghassan Hage cited in Gilber/Lo (2008), p. 87. 8 Blanco Arboleda (2008), p. 26.

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plurality, be they cultural, political, historical, artistic, or literary, that occur with those devices. Therefore, there is not one cumbia, but many cumbias, and it is here where the traditional approach fails, since that relationship of plurality is horizontal and not vertical as cosmopolitanism proposes.

I. What is cumbia? The very definition of what is called cumbia brings a problem if we take into account that it is not only a musical genre or rhythm, or a dance, as mentioned above. There are many definitions of cumbia and each one of them contributes elements that, in sum, can give an idea of the practice, but these elements are not exhaustive once they are separated from each other. In an interview with musicologist Federico Ochoa, Julio De la Hoz defines cumbia as: “A term that was used by record companies in the 1960 s to describe Colombian Caribbean music, a term that encompasses our dance music and contributes to the export of our music […] The answer to why the term cumbia is used to describe other musical rhythms lies in the market’s need to create a cultural and musical identity”9.

The suggested definition of cumbia refers exclusively to musical and commercial practices, which makes this definition incomplete if we take into account that other musicological or anthropological aspects are left out, so that we could not speak of a set of practices in this case. Edwin Pitre-Vásquez defines cumbia as “a music that is played in a dance, proper to be danced, traditional or popular, born from the Indian and the black, raised in the Colombian territory and sung in Spanish. It is moreover: it is an identity of those who live in America”10. I have taken this definition valuing the fact that he is a researcher who has worked on cumbia from Brazil. His definition focuses on the fact that cumbia is a musical genre, which involves a dance with a specific origin in a demarcated territory and which also forms an identity of those who live in America. The definition is complete because it considers the origin, the territory, the practices, the people as well as the language used. For his part, Sebastián Ochoa defines cumbia as “a dance and a cultural practice, a set of genres (in the plural), a market category in the cultural industry, and a genre (in the singular) as the foundational triethnic matrix of the rest of the music of the Colombian Caribbean”11. This last definition can be considered more approximate within the notion of what will be later called “ecology of practices” because it includes several of them: a musical practice when it mentions dance and a set of genres, an economic practice when it mentions the market and the cultural industry, and a his9

De La Hoz (2013), p. 289. Pitre-Vásquez (2008), p. 6. 11 Ochoa (2016), p. 32.

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torical practice when it refers to a genre in the Colombian Caribbean with a triethnic matrix. However, it can also be completed with other specific points, such as its PanAmerican character, its cross-border practice, and the content of its lyrics. Because of this triethnic character and its current territoriality, it could be argued that it is a multicultural or cosmopolitical practice and, given that it is in constant transformation, it is considered a nomadic and mutant practice that is permanently evolving in its discourse and in the type of experiences that surround it, in the cultural imaginaries it recreates, and proposes the redefinition of its meanings, constructions of meaning, and political implications. Given the wide possibility of meanings that are addressed under the notion of cumbia, Ochoa himself proposes four categories: the first considers cumbia as a dance and practice of rural musical groups of “blacks” and “Indians” in the Colombian Caribbean region12. Under this meaning the terms “cumbia dance” and “cumbiamba” are interchanged indifferently. A second category is that which considers cumbia as a musical genre with melodic instruments as given by the bagpipes, the millo flute13, the accordion, and other wind instruments in the salon orchestras14. A third category exposed by Ocha considers cumbia as a genre that includes other cumbias (bagpipe, millo, accordion, orchestra) and rhythms such as the porro, bagpipe, bullerengue, drum, chandé, merecumbé, and in general “all kinds of fusions, innovations, and hybrids that musicians can invent while maintaining that same basic rhythmic structure”15. Finally, cumbia is referred to as the market category for Colombian music with a Caribbean flavor: this use “works mainly as a strategy by the record companies to sell these musics under a single, all-encompassing term”16. At the musical level, cumbia is more than a rhythm with mixed and African roots, or an expression of identity, musical genre and cultural practice, but also implies a narrative of idiosyncratic resistance and collective obstinacy: “problematizing cumbia is a way to undermine or subvert official or governmental discourse, particularly if we contemplate the extent to which music of this variety has become an object of concern for government interests”17. Like other cultural projects, cumbia has become a pillar that was built from an amalgamation of social and ethnic groups. According to Wade, cumbia: [I]s generally presented as a very old and traditional form. Specifics, however, are never presented, antiquity instead being evoked by adducing mixed indigenous and African origins,

12

Ochoa (2016), p. 33. Convers/Ochoa (2007), p. 72. 14 Wade (2000), p. 89. 15 Ochoa (2016), p. 34. 16 Ochoa (2016), p. 35. 17 Fernández L’Hoeste (2013), p. 248. 13

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with frequent claims to an African origin for the name and some mention of European influences18.

This makes cumbia work as a unifying element in the wide range of unofficial national histories used to place the inhabitants of a territory under a single identity; that is, as a unifying symbol that brings together different groups within the same space or a symbol that invokes mestizaje. In the history of cumbia there is a place for the question of how this genre, full of polysemy and polyvalence, is not localist, but rather pan-regional. Thus, in spite of the multiple historical approaches that have been made to it, there is no historical narrative unit that can frame it as a Pan American project. Is it possible to speak of a Pan American identity with cumbia as a set of common practices? Does it serve as a unifying element of a Latin American identity? These are questions that can elucidate the problems surrounding this ecology of practices, defined, according to Stengers, as the science of multiplicities, diverse causalities, and intentional creations of meaning19. Cumbia is the product of historical causalities so, if we understand cumbia practices as an ecology, then its history is also a practice. The origin of cumbia and its subsequent mobility throughout the continent have given it a complete ontology. It not only offers a musicological basis for study, but also talks about topics as diverse as displacement, race, gender and identity. Wherever cumbia is, it redefines itself and its practices are resignified. The cumbia practice has expanded throughout the continent, but as Blanco Arboleda suggests, “it remains within the groups of origin, showing us how this sonority has been heard and danced to by the popular classes in a consistent manner, establishing itself as the voice and sound of their culture; as an evident challenge and communication with the hegemonic groups that relegate and dismiss them”20. The cumbia has constitutive devices that completely demarcate it as the instrumentation, the lyrics, the carnivals, the performance.

II. Cumbia and cosmopolitanism In markedly multicultural countries like Latin America where, according to Pablo Salinas, “the large cultural areas were delimited with certain clarity. Multiculturalism was then the most evident mark that separated subjects in fixed locations and contributed to rigid social stratification and economic differences”21. Thus, in order to root a national identity project, the States adopted a cosmopolitan national discourse as an ideological expression of multiculturalism. 18

Wade (2000), p. 60. Stengers (2010), p. 35. 20 Blanco Arboleda (2008), p. 27. 21 Salinas (2013), p. 239. 19

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This argument goes in the same order of ideas as Salinas, since he argues that States try to “westernize” by converting “a group of their individuals into modern subjects in peripheral modernity”22, therefore, it is correct to affirm that cosmopolitanism, in terms of cultural practices, can be used to create national identity. In his article “Vers un nouveau cosmopolitisme? Étrangers, pas ennemis”, Étienne Balibar argues that he “prefers to associate the idea of cosmopolitanism with a transnational rather than a post-national perspective: the first does not mean that national identities are disappearing”23. This is happening to give rise to a new type of identities, interests and norms that, according to a national point of view, elude sovereignty and cross borders. Thus, cumbia cannot be understood only as an exclusive musical phenomenon, but, given its transformations and its travelling aspect, it permeates other cultural spheres, or better, converges in a punctual way with other artistic manifestations. The cosmopolitical visions that propose an approach to cultural practices as commodities and as elements of modernization of national identities is what makes it necessary to review the way in which these practices are understood. The term cosmopolitanism has a positive connotation. If someone is nominated as a cosmopolitan, characteristics such as openness, tolerance and worldview are attributed to him or her. Helen Gilbert and Jacqueline Lo in Performance and Cosmopolitics (2008) investigate the relationship between “the new cosmopolitanism” and performance, proposing that it is necessary to go beyond the western and elitist aura of cosmopolitan, multicultural and intercultural models. On the one hand, there is the sophisticated global cosmopolitanism that is considered politically necessary to promote economic globalization and replace multiculturalism as a strategy of “ethnoracial management”24. The authors complete by stating that it is an old white cosmopolitanism remodeled in the form of an aesthetic and consumer cosmopolitanism that transcends xenophobic nationalisms but celebrates the aesthetization and commodification of cultural difference. This is complemented by what is mentioned by the Peruvian academic Victor Vich in “Las políticas culturales en debate: lo intercultural, lo subalterno y la dimensión universalista” (Cultural policies in debate: the intercultural, the subaltern and the universalist dimension): “Any intercultural proposal must begin by emphasizing that, in the present conditions, dialogue occurs in a context that is marked by the historical domination of one culture over another, by the self-proclamation of a place of enunciation as epistemologically superior, and by a market economy – increasingly monological – that aspires to erase its political interests – read particulars – and that denies – or discredits – any element that attempts to reconfigure the system in another way”25. 22

Salinas (2013), p. 240. Balibar (2016), p. 20. 24 Balibar (2016), p. 17. 25 Vich (2005), p. 271.

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For Vich, the proposal of an approach to intercultural practices must be given only through a revisionist dialogue of the hegemonic positions.

III. Towards cumbia as an ecology of practices The Belgian philosopher Isabelle Stengers, in her work Cosmopolitics, deconstructs the traditional hegemonic approaches of cosmopolitanism and proposes to understand the state of cultural practices as an “ecosystem”26 in which a series of relationships she calls “ecology” are woven. This proposal is based on unifying the multiple tensions, complicities and resistances present in the relationships of plurality that are present in cultural practices (cumbia, for example) and this requires a concept that articulates diverse assemblages. Therein lies the importance of the notion of practice and that proposed by Isabelle Stengers: “Approaching a practice then means approaching it as it diverges, that is, feeling its borders, experimenting with the questions which practitioners may accept as relevant, even if they are not their own questions”27. With this concept, cumbia is understood as a practice that is made up of other practices, and an academic position can be taken that examines it from a values perspective of a process in the present time. The ecology of practices “[…] aims at the construction of new ‘practical identities’ for practices, that is, new possibilities for them to be present, or in other words to connect. It thus does not approach practices as they are – physics as we know it, for instance – but as they may become”28. In terms of cumbia as ecology, this concept works transversally to analyze its heterogeneity, reconstruct its perspectives, map its relationships and reveal its different configurations. In the case of cumbia, it is not possible to approach it if it is not addressed empirically. The different cross-border displacements of the practice of cumbia support the formation of regional subjectivities and identities, which are constituted under the performativity and the daily and collective experience of cumbia. The human groups that interpret and live cumbia in Latin America propose the construction of differential identities in order to dialogue and/or resist with the hegemonic social groups. Understanding cumbia as the ecology of interrelated practices can be compared to a mental map in which cumbia as a concept is at the center, and around it, among others and adjacent to it, are the practices that support it: performative practice where cumbia appears as a dance and its musical interpretation; musical practice that considers cumbia as a musical genre and the musical materiality of cumbia is composed of the different instruments; narrative practice which is the lyrical dis26

System: organized body. Eco: home. Stengers (2013), p. 184. 28 Stengers (2013), p. 186. 27

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course (thata can be political, historical or poetic) and which is studied through semiotics; discursive practice is where other arts narrate cumbia (cinema and literature); the academic practice is the study of cumbia by the human sciences after assigning it an anthropological and sociological historicity and practices; the identity or political practice is in which urban, rural, national and continental human groups are rooted in the practices through their identities; a cultural practice in which the materiality of cumbia is held (records and printed material) and in where the preservation of cumbia heritage is encouraged as in libraries, carnivals and festivals. Cumbia is also composed of a dialogical practice that consists of placing it in a critical relationship with the exploration of violence itself, the territory, the city, travel, post-colonialism, the body, etc. As I have exposed up to here, the mentioned practices occur in an explicit way, however, within an ecology of practices, implicit practices can occur that can be inferred from a common practice or a specific situation, experiential and localist, for example, if one considers the practice of the dance of cumbia, which is explicit, it is inferred that this can be a form of courtship or ritual, which is an implicit practice. It should be noted that the set of practices is always contextual, that is, the practices refer to the type of relationships of individuals in a defined territory and time. For example: cumbia in all of Latin America is an ecology of practices, at the same time that cumbia in Cartagena is, in turn, an ecology of practices, as can also happen in Lima, Buenos Aires, Recife, Montreal or Monterrey. Thus, if the ecology changes, the underlying values can change, that is, the practice does not speak in the same way and can express different ideas depending on the place. The perspective that Stengers proposes with the ecology of practices is not cosmopolitical29 in the traditional sense of the term “cosmopolitanism”, because it speaks of the possibility of the coexistence of divergent visions, in such a way that it flees from the possibility that some practices are hegemonic and are exercised over others, that is, for example, mistakenly thinking that the Panamanian cumbia is more important than the Peruvian one because of a historical issue. The ecology of practices differs from the microcosmopolitanism proposed by Michael Cronin in Translation and Identity (2006) because its approach operates from below and not from above as traditional Cosmopolitanism does. It is from there that the alien, the foreign, the exchange within the local is situated. In this way we under29

To shed light on the understanding of the multiple cumbias, it is necessary, as mentioned above, to consider cumbia as a practice that is itself a set of other practices, and not just a musical genre-rhythm or dance. Isablle Stengers, in order to refute the approaches from a hegemonic position, starts from the thesis that knowledge (everything that has been elaborated from postivism/modern science) is part of a landscape with multiple discordances because there are inconsistencies in the fact that science has left aside empirical practices. Stengers (2010) examines the possibility of treating the cosmos as an ecology of practices (10 – 11) and conceiving it as within a process of immanent existence by making science and the history of science more attentive to the empirical limitations of scientific practice. It is at this point that it enters into dialogue with cultural studies.

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stand all its dynamic complexity and also the possibilities of interconnection both locally and externally. The ecology of practices, as approached by Stengers, carries with it the idea of bricolage alluding to a space of relations30 and not the idea of system as a set of practices that do not form part of a functional whole and whose function cannot be deduced from a totality. With the proposal of ecology of practices, Stengers redefines cosmopolitanism since it allows thinking about the coexistence of practices in different geographical areas and offers the possibility of understanding them as a unit. This opens a new path for the cumbia to be understood as a political space where no individual reserves the right to decide for others what the privileged point of view will be. From this perspective of practices, cumbia does not superimpose a cultural idiosyncrasy of one practice over another. References Balibar, Étienne: Vers Un Nouveau Cosmopolitisme? Étrangers, Pas Ennemis, in: Altérités : revue d’anthropologie du contemporain, 9, 2016, pp. 9 – 26. Blanco Arboleda, Darío: La Cumbia como Matriz Sonora de Latinoamérica. Los Colombias de Monterrey México (1960 – 2008). Interculturalidad, Identidad, Espacio Y Cuerpo, in: Social Sciences, Colegio de México, 2008. Convers, Leonor/Ochoa, Juan Sebastia´n: Gaiteros y Tamboleros: Material para Abordar el Estudio de la Música de Gaitas de San Jacinto, Bolívar (Colombia), Pontificia Universidad Javeriana, 2007. Cronin, Michael: Translation and Identity, 2006. De La Hoz O’Byrne, Julio: Cumbia y Cartagena de Indias: Entre las Leyendas y la Fiebre de Exportación, in: Villes en Parallèle, 47 – 48, 2013, pp. 286 – 301, Persée, https://www.persee. fr/doc/vilpa_0242-2794_2013_num_47_1_1642. Access on July 31, 2020. DeNora, Tia: Music in Everyday Life, Cambridge 2000. Ferna´ndez l’Hoeste, He´ctor D./Vila, Pablo: Cumbia!: Scenes of a Migrant Latin American Music Genre, Durham and London 2013. Gilbert, Helen/Lo, Jacqueline: Performance and Cosmopolitics: Cross-Cultural Transactions in Australasia, Palgrave Macmillan 2008. Ochoa, Juan Sebastia´n: La Cumbia En Colombia: Invencio´n de una tradicio´n, in: Revista musical chilena, 70, 226, 2016, pp. 31 – 52. Pitre-Vásquez, Edwin Ricardo: Veredas Sonoras da Cúmbia Panamenha: Estilos e Mudança de Paradigma, Escola de Comunicação e Artes Universidade de São Paulo, 2008. Rice, Timothy: Ethnomusicology: A Very Short Introduction, Oxford University Press 2014. Stengers, Isabelle: Cosmopolitics, University of Minnesota Press 2010. 30

Stengers (2010), p. 34.

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Stengers, Isabelle: Introductory Notes on an Ecology of Practices, Cultural Studies Review, 11, 1, 2013, pp. 183 – 196. Salinas, Pablo: La Representación De La Migración En Cuatro Películas Peruanas De Los Ochenta, University of Ottawa 2013. Wade, Peter: Music, Race & Nation: Mu´sica Tropical in Colombia, University of Chicago Press 2000. Vich, Víctor: Las Políticas Culturales En Debate: Lo Intercultural, Lo Subalterno Y La Dimensión Universalista, in: El Estado está de vuelta: desigualdad, diversidad y democracia, 30, 2005, pp. 265 – 274.

Cosmology and politics in the Anthropocene By Marco Antonio Valentim For Déborah and Eduardo With eyes that ring like chimes His anti-worlds go spinning through his head He burns them in his dreams For half awake they may as well be dead — Scott Walker, “The Old Man’s Back Again”

I. Getting started In this text, I would like to consider a conflict, both cosmological and political, which calls into question the “formal purposiveness of nature”, a foundational principle established by Kant in the Critique of the Power of Judgement1. Being the transcendental basis for the “cosmopolitan aim”2, this principle has become one of the metaphysical foundations of the Anthropocene, the new historical-geological regime of the Earth system3. Here I recall the penultimate paragraph of Lévi-Strauss’ Tristes Tropiques in order to use it as motto for such a consideration. This is an enigmatic paragraph situated between two others, composing together a tiny tractatus on “entropology”4. The first one starts with the famous statement that “The world began without the human race and it will end without it”5 and culminates with the astonishing characterization of the modern cosmopolis as a gigantic machine destined to maximally accelerate the entropic disintegration of the Earth. In the last paragraph of the book, from the cosmological apperception that “Man is not alone in the universe”6, the entropologist sees a 1 (2000), 68 ff. I would like to thank Fernanda Miguens and Juliana Fausto for the great help in translating the Portuguese original into English. 2 Kant (2007). 3 Chakrabarty (2009); Danowski/Viveiros de Castro (2014); Latour (2015); Marques (2016). 4 Lévi-Strauss (1961), p. 397. 5 Lévi-Strauss (1961), p. 397. 6 Lévi-Strauss (1961), p. 398.

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chance to postpone the planetary collapse caused by industrial civilization through the opening to sources outside mankind (such as minerals, plants and animals). In the intermediate paragraph to which I refer, Lévi-Strauss, starting expressly from an adversative cogito, recognizes in the struggle for life of the peoples on Earth nothing less than an objectivity of political order, superior to the scientific certainty about the “heat death of the universe”: “And yet I exist. Not in any way, admittedly, as an individual: for what am I, in that respect, but a constantly renewed stake in the struggle between the society, formed by the several million nerve-cells which take shelter in the anthill of the brain, and my body, which serves that society as a robot? Neither psychology, nor metaphysics, nor art can provide me with a refuge; for one and all are myths subject, within and without, to that new kind of sociology which will arise one day and treat them as severely as has our earlier one. Not merely is the first person singular detestable: there is no room for it between ‘ourselves’ and ‘nothing’. And if, in the end, I opt for ‘ourselves’, although it is no more than an appearance, it is because unless I destroy myself – an act which would wipe out the conditions of the decision I have to make – there is really only one choice to be made: between that appearance and nothing. But no sooner have I chosen than, by that very choice, I take on myself, unreservedly, my condition as a man. Thus liberated from an intellectual pride whose futility is only equalled by that of its object, I also agree to subordinate its claims to the objective will-to-emancipacion of that multitude of human beings who are still denied the means of choosing their own destiny”7.

II. Entropic nightmare In Between Time and Eternity, Prigogine and Stengers speculate on the reasons why 20th century physics, represented by quantum mechanics and the theory of relativity, would have remained “in solidarity with the ideal of infinite precision of which the principle of sufficient reason was the bearer”8. Their answer is concise: “The leitmotiv of those who deny the arrow of time is that, if it existed, we could not understand why all fundamental physical laws agree to deny it”9. So, to affirm the entropic arrow of time, in the sense of the irreversible and unpredictable evolution of matter, would mean disobeying the laws that determine the order and intelligibility of physical phenomena – the very laws that, when guided by the ideal of predictability and control, constrain nature to the impossible reversibility of its own evolutions. As if the unrestricted and inescapable affirmation of the arrow of time evoked a nature completely out of joint: once being far from equilibrium, nature itself would make science itself meaningless.

7

Lévi-Strauss (1961), pp. 397 – 398. Prigogine/Stengers (1992), p. 124. 9 Prigogine/Stengers (1992), p. 124. 8

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This is a conflict between two antagonistic epistemic attitudes. The first of these, being either “deeply pessimistic” or “arrogantly optimistic”, supposes that “we observers, through our measures, introduce probabilities and irreversibility into a world that, without us, would be deterministic and reversible”10. On the contrary, the other attitude would acknowledge that “to understand history is not to reduce it to underlying regularities or to a chaos of arbitrary events, but to understand at the same time its coherences and events”11. On the one hand, we have a “cold” science which, in order to balance itself in nature, seeks to control it; on the other hand, we have a “warm” science, in “perpetual imbalance”12 and, only then, in “dialogue with nature”13. While the first became the “science of industrial fire”14, for being able to dominate things according to the model of Carnot’s mechanical combustion, the second glimpsed an “ultra-living”15, “hyperphysical”16 fire, capable of transmuting things in the manner of organic metabolism. Thus, from a noetical point of view, the thermodynamic values reverse prodigiously: if cold science “inflames” the cosmos, warm science “refreshes” it. And so, as Donna Haraway says, “the material semiotics of fire in our times are at stake”17. We are dealing with a conflict that is both thermodynamic and political. Facing it, the analogy that Prigogine and Stengers make between the science that intends to control the world and the dystopian politics of totalitarian societies acquires enormous weight: “In a recent book, Allan Bloom recalled Swift’s criticism of scientific rationality. Like the perfect cartesian that they are, the inhabitants of Laputa have one eye in the sky, whose mathematical laws they decipher, and another turned inwards, towards their selfish subjectivities. And the mobile island of Laputa dominates the Earth, doing this thanks to the technical power based on the discovery of physical principles. Therefore, science would be the natural ally of power, since it dominates what it prefers to ignore: men who are neither geometric figures nor pure reflective subjectivity. The problem raised by Swift is serious and cannot be solved by a mere theoretical transformation. However, one can say that scientific rationality can no longer be invoked today to justify scientists who adopt the model of the inhabitants of Laputa. The confrontation between the object submitted to timeless laws and the free subject, who dominates the world but without the multiple ties that he weaves with it, can no longer be said to be ‘rational’, in the sense that it would be rational to oppose the ‘true’, ‘legitimate’ world, deciphered by science, to the disturbed world where the scientist lives. The classic ideal of science, the discovery of a world intelligible but without memory, without history, refers to the nightmare announced by Kundera and Huxley, but especially by 10

Prigogine/Stengers (1992), p. 17. Prigogine/Stengers (1992), p. 52. 12 Lévi-Strauss (1993), p. 209 ff. 13 Prigogine/Stengers (1992), p. 124. 14 Prigogine/Stengers (1984), p. 83 ff. 15 Bachelard (1994), p. 11. 16 Schrödinger (1997), p. 86. 17 Haraway (2016), p. 44.

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Orwell. In his work entitled 1984, the language itself is cut off from its past and, therefore, also from its power to invent futures, collaborating to imprison men in a present without resources or alternatives. This nightmare is that of power and no longer that of scientific rationality. And this rationality no longer makes it possible to define the suppression of memory, the elimination of narratives, the reduction of imagination as purification, as a legitimate price for the constitution of society as an object of science; on the contrary, it leads to characterize them as mutilations that destroy what we intend to understand”18.

The swiftian problem reveals the fact that the universe projected by a despotic science, be it perfectly ordered or absolutely chaotic, is equivalent to a “nightmare” that conspires for its heat death. This science defines entropy ultimately as a process which is destructive of its own conditions of possibility19. In this sense, 1984 presents a political configuration corresponding to cold science: in both cases, it is about “imprisoning men in a present without resources or alternatives”. But Prigogine and Stengers refuse the status of scientificity and even rationality to such a conception of science: “This nightmare is that of power and no longer that of scientific rationality”. So, if we take as a measure of noetic temperature the potential for transformation of a mental system according to its external environment20, we could say that, while science ignited, politics remained icy.

III. Cosmic fascism Today we face the fact of living collectively inside this nightmare. This happens because power, in its most nefarious form, stands up today producing other “destructive mutilations” besides those mentioned by Prigogine and Stengers – they consist in negative propaganda, alternative facts, intentional neglect, public censorship and persecution, and even criminal fires – against contemporary scientific rationality, particularly in so far as, betraying that “natural alliance”, it denounces the catastrophic effects of power, both political and environmental21. We is the title of Zamyatin’s more relevant novel, which Orwell, in a 1946 review, puts together with Huxley’s Brave New World as “books dealing with the rebellion of the primitive human spirit against a painless, mechanized, and rationalized way”22. According to what the writer sums up, the book is “a study of the Machine, the genius that man thoughtlessly freed from the lamp and failed to put back”23. It describes a world in which cold science and totalitarian politics become indistinguishable, a world separated from the outside by a “Green Wall”, inhabited by human survivors 18

Prigogine/Stengers (1992), p. 70. Prigogine/Stengers (1992), p. 26. 20 Bateson (1987). 21 Danowski (2018). 22 Orwell (2017), pp. 317 – 318. 23 Orwell (2017), p. 323.

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and dissidents. While the intra-wall ones are literally “numbers” that feed themselves on fossil fuels, the extra-wall people constitute almost another human species, supposed to have returned to its animal “primitivity”. The dissident number I-330 explains this situation to the narrator, engineer number D-503: “I know the beginning was about the Two Hundred Years War. And then: red on the green grass, on the dark clay, on the blue snow, red puddles that didn’t dry. Then the sunburnt yellow grass, yellow and naked disheleved people, disheleved dogs – nearby, next to swollen corpses of dogs or, perhaps, people… That, of course, went beyond the Walls: because the city had already won and our current oil-based food already existed. You did not know, and few knew, that a small part of them managed to save themselves and started to live there, outside the Walls. Naked, they left for the forest. They learned from the trees, the beasts, the birds, the flowers, the sun. They acquired more hair, but under that hair they kept the red, hot blood. It was worse for you: you created the numbers, which crawl through you like lice. It is necessary to free you from everything and expel you naked to the forest. Let you learn to tremble with fear, happiness, anger, cold, and pray for the fire”24.

The war in question takes place between an intra-wall civilization in the form of a “mathematically infallible” machine that “spits fire” and the people of the forest, who are dissidents of the city and “pray for fire”, but for another fire, “the pulse of a new life”, which the narrator experiences as “ardor” in his own face25. His ally in dissent explains the reason for the inevitable conflict by distinguishing between entropy and energy as two opposing socio-cosmic forces: “There are two forces in the world: entropy and energy. One tends to the blessed rest, to happy equilibrium; the other tends to the destruction of equilibrium, to painful endless movement”26. In short, we have, on the one hand, thermodynamics of equilibrium and political totalitarianism (“the line of the Single State is the straight line”) and, on the other hand, thermodynamics of non-equilibrium and revolutionary freedom (“the wild curve”)27. Zamyatin gives us a key to the interpretation of this conflict in an essay entitled “On Literature, Revolution, Entropy, and Other Matters”: “Revolution is everywhere, in everything. It is infinite. There is no final revolution, no final number. The social revolution is only one of an infinite number of numbers: the law of revolution is not a social law, but an immeasurably greater one. It is a cosmic, universal law – like the laws of the conservation of energy and of the dissipation of energy (entropy). Some day, an exact formula for the law of revolution will be established. And in this formula, nations, classes, stars – and books – will be expressed as numerical quantities. The law of revolution is red, fiery, deadly; but this death means the birth of new life, a new star. And the law of entropy is cold, ice blue, like the icy interplanetary infinities”28.

24

Zamyatin (2017), p. 223. Zamyatin (2017), pp. 16 – 17. 26 Zamyatin (2017), p. 224. 27 Zamyatin (2017), p. 17. 28 Zamyatin (1970), pp. 107 – 108.

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Therefore, in We, the Single State and the forest configure two structurally divergent political and thermodynamic regimes. In his User’s Guide to Capitalism and Schizophrenia, Massumi unfolds, in a metaphysical way, Zamyatin’s revolutionary “anti-entropic” speculative thesis on the indiscernibleness between politics and thermodynamics. Applying the thermodynamics of non-equilibrium to political systems while conceiving of social dynamics as animated by divergent hyperphysical attractors “becoming-the-same” and “becoming-other” –, he defines fascism as a self-destructive, thermodynamic-political system that consummates the characteristical trend of “hot societies”29. Such a system combines maximum order (absolute hierarchy) with maximum entropy (total chaos): “Fascism can be defined as the incorporeal transformation of a system operating under two deterministic constraints and tending toward stable equilibrium into a highly unstable, frenetically dissipative structure. The constraints are oneness – maximum order – and rest – maximum entropy. Together they define the fascist attractor – becoming-the-same. But by thermodynamic definition they are a contradiction in terms. Maximum entropy (rest) means maximum molecular chaos (disunity). Order, or the maintenance of correlations at a distance (unity in movement; oneness), requires infusions of energy and is thus negentropic. The constraints of entropy and order can be synthesized into a stable equilibrium only in a closed system. No system is closed. The outside always seeps in, if only because the energy infusions necessary for the molar synthesis require an opening onto an aleatory outside. This entails the perception of another attractor – the unpredictability of becoming-other. That attractor is defined by two constraints as well: disorder and differentiation. Since it is of the outside, becoming-other is naturally the more inclusive process. The constraint of differentiation is in fact the entire system of stable order. Becoming-other encompasses becomingthe-same: it takes a stable equilibrium, welcomes a measure of instability (chance), and incorporeally transforms the system into an active order that counteractualizes oneness and rest into a line of perpetual self-escape. Becoming-other is “anarchy”. Since it undermines identity, its process can be considered schizophrenic. Every society responds to both attractors. A social formation is defined by its particular mix of becoming-other and becomingthe-same, schizophrenia and paranoia, anarchy and fascism. The attractors are limit-states, unreachable extremes lying at opposite ends of a continuum of potential syntheses of interiority and the outside, closure and open-endedness”30.

This is nothing less than a metaphysical description of the thermodynamic process by which the temperature of a society is transformed and determined. How does a society get hot? Or how does it become cold? They do so by means of a composition of order and entropy according to the “incorporeal” prevailing attractor in each case (identity or difference, interiority or exteriority, closure or opening). Since the process of social formation always implies “infusions of energy”, that is, some opening to the outside, the anarchic attractor is metaphysically prior to the fascist attractor. This is why the “anarchic attractor” inevitably catalyzes a movement of “openness to the other” – a movement that distinguishes precisely the “hot philosophy” of cold soci29 30

Lévi-Strauss (2012), pp. 57 – 62. Massumi (1992), pp. 116 – 117.

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eties from the “cold philosophy” of hot societies31. As far as social formations are concerned, these metaphysical-thermodynamic systems are never symmetrical, since, while one favors its reproduction by means of “schizophrenic” opening, the other conspires inexorably to collapse by means of “paranoid” closing. Nevertheless, “Heaven has turned into Hell on earth”32. Fascism, a system in which every substantive otherness embodies “the ever-present specter of the ubiquitous Enemy”33, turns out to be the official politics of the Anthropocene. No wonder that the new geological epoch has as its biological corollary the Sixth Great Extinction, an anthropogenic catastrophe marked by the risk of massive extinction of life on Earth, non-human and human34. The “sociological hell” will also be an “ecological desert”, and vice versa35. Since every human society consists, first of all, in a region of a wider “ecomental” cosmos36 in which other societies, mainly extra-human, participate, the fascist rejection of the Outside coincides fully with the socio-environmental disaster. The Anthropocene is the time of cosmic fascism.

IV. Why does it never end? However, to what extent does the thermodynamics of non-equilibrium, on which Massumi expressly bases the thermodynamic element of his exposition – against the “[fascist] nightmare of power” –, admit the cosmological possibility of the thermal death of systems and, at the limit, of the cosmos itself? Death is a factor of cosmic evolution as something inseparable from life, as order from disorder. But the issue here is not this kind of death. Not death as the end of life, but as the end, at the same time, of life and death, the end of the irreversible evolution of matter, the collapse of irreversibility itself. More precisely, what is at stake is the death of physical systems, not according to the life of other systems, but in the form of a doubly irreversible collapse. In this sense, it would be expected that, by their unrestricted affirmation of irreversibility, Prigogine and Stengers would problematize, in the foreground, such a possibility, that of the death of death – “Death’s End”37, “Double Death”38. Yet, perhaps because they take the arrow of time too chronologically, they tend to refuse or at least preclude the chance of an irreversible collapse of irreversibility. 31

Lévi-Strauss (1993), pp. 14, 215; Valentim (2018), pp. 275 – 280. Massumi (1992), p. 116. 33 Massumi (1992), p. 116. 34 Kolbert (2014). 35 Danowski/Viveiros de Castro (2014), p. 29. 36 Bateson (1987), p. 490 ff. 37 Liu (2016). 38 Haraway (2016), p. 164.

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Commenting on Between Time and Eternity in allusion to the deleuzian interpretation of Lucretius39, Massumi corroborates this problematic refusal by representing the dynamics of irreversible evolution of matter as a kind of perpetual parturition, an incessant feedback of the actual by the virtual: “What we get in the form of ‘chance’ and indeterminacy is overflow from the actual’s absorption of the virtual. After the initial contraction-dilation, the material universe goes on dilating slowly until its future is consumed by its past and it disappears into maximum entropy. Then it all starts again. There is a time line or ‘arrow of time’ (clinamen, or ‘swerve’, in Lucretius’s vocabulary) leading out of void through the material world and back into the voId. More accurately, there are many time lines, as many as there are universes that will have been, even more, as many as the phenomena that will have been born and died in those worlds – because the resonance between the virtual and the actual never ends”40.

But how come it never ends? Why “everything [has to] [re]start again”? Massumi gives a concise answer: because “entropy only applies to the actual”, so that every collapse “rejoins the turbulent potential of the virtual”41. But would that potential really be inexhaustible, inextinguishable? Could there be limits to entropy? What about the entropic collapse of the virtual – would not that be “possible”? Lucretius himself, although affirming the infinitude of the universe through the reciprocal limitation between matter and void, did not completely eliminate the danger of its heat death. On the contrary, he imagines a paradoxically anti-cosmic catastrophe: “[…] lest after the winged way of flames the walls of the world suddenly fly apart, dissolved through the great void, and lest all else follow them in like manner, or the thundering quarters of the sky fall down from above, and the earth in hot haste withdraw itself from beneath our feet, and amid all the mingled ruin of things on earth and of the sky, whereby the frames of bodies are loosed, it pass away through the deep void, so that in an instant of time not a wrack be left behind, except emptied space and unseen first-beginnings”42.

In the case of the entropology proposed by Prigogine and Stengers, the interdiction on this paradoxical speculation seems to be due to their confessed bergsonism43. In Creative Evolution, Bergson explains cosmic disorder as a deceptive “oscillation” of the spirit between two kinds of order: the vital order, “free and unpredictable”, and the physical order, “inert and geometric”44. Taken apart, disorder would be just “a word without meaning”45. While matter consists of “a gesture that undoes itself”, life is “a reality that is made through that which undoes itself”46, but in both cases the “gesture” is fundamentally creative. There is no place for the possibility of an 39

Deleuze (2003), p. 273 ff. Massumi (1992), p. 168. 41 Massumi (1992), p. 169. 42 Lucretius (1910), pp. 63 – 64. 43 Prigogine/Stengers (1992), p. 23 ff. 44 Bergson (2005), p. 257. 45 Bergson (2005), p. 256. 46 Bergson (2005), p. 269. 40

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“undoing” which, as something opposed to creation, would imply irreversible destruction, that is, the most radical anti-purposiveness of nature. According to this, the philosopher outlines a mitigated interpretation of the second law of thermodynamics, referred to as “the most metaphysical of the laws of physics”47. The degradation it describes would go beyond the “terrain of physics”, concerning an “extra-spatial process” that coincides with “God”: “incessant life, action, freedom”48. Cosmic degradation would be nothing less than a divine breath… Unlike Lucretius, Bergson does not recognize any valid sense for the notion of the heat death of the universe as an irreversible collapse of life. Life could never be definitively suppressed by matter as an opposing cosmic power: “Beside the dying worlds no doubt there are those that are born. On the one hand, in the organized world, the death of individuals does not appear in any way as a diminution of ‘life in general’, or as a need to which it would unintentionally submit. As we have observed more than once, life has never committed itself to prolonging the existence of the individual indefinitely, while at so many other points it has unfolded so many happy efforts. Everything happens as if this death had been desired, or at least accepted, for the greatest progress of life in general”49.

Progress of life in general – and of mankind in particular? According to Bergson, man constitutes, thanks to his intuitive capacity, the metaphysical “point” where life overcomes the “obstacle” imposed by matter: “Everywhere other than in man, conscience found itself faced with a dead end; only with man did it continue its path”50. Since it is defined rather by conscience than by matter, life is overdetermined by a form of “anthropism”51 in such a way that the definitive victory of life over entropic degradation should necessarily correspond to the “military” – cosmopolitan – conquest of immortality by man: “All the living touch each other and all give in to the same formidable impulse. The animal finds its point of support in the plant, man rides in animality, and all of mankind, in space and time, is an immense army that gallops beside each one of us, in front of us and behind us, in a contagious charge, capable of pulverizing all resistances and overcoming many obstacles, perhaps even death”52.

47

Bergson (2005), p. 264. Bergson (2005), pp. 265, 270. 49 Bergson (2005), p. 268. 50 Bergson (2005), p. 288. 51 Romandini (2012). 52 Bergson (2005), p. 293. 48

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V. Visit to the sky Nevertheless, we are now surrounded by the anthropogenic specters of extermination and extinction in social, intra-human, and environmental, extra-human, dimensions. We face the real and imminent danger of the heat death of the Earth system to be caused by the frenetically entropic expansion of modern civilization. In view of this, can we remain convinced, by obedience to a need that is more metaphysical than physical, of the “eternal return” of life on a cosmic scale? This “hellish alternative”53 results from a transformation of Lévi-Strauss’ one in Tristes Tropiques. While the entropologist oscillated between the scientific certainty of the heat death of the universe accelerated by the civilizational machine and the existential commitment to the struggle for life of the peoples, our alternative would be, similarly yet differently, between the experimental intuition of the creative evolution of the cosmos and the factual evidence of the socio-environmental catastrophe. However, as every hellish alternative is not a fate but a spell, and as a spell can be counter-effectuated, the necessary counter-spell seems to demand, in the midst of the ongoing disaster, recognition, experience and, above all, practice of immanent communication between life and cosmos, without the prejudice to the supremacy of life, especially human, over matter. If every cosmology is political, it is so because, as an ecomental system of life, every politics immediately participates in the establishment, transformation and destruction of the complex of “multiple and divergent worlds” in which the cosmos consists54. And if fascism constitutes the political regime of the Anthropocene, it is so because, by its causes and effects, politics is not only cosmic but can also become anti-cosmic. Whether manifestly or covertly, cosmology has always been embedded in the gloomy heart of human politics. In a sense, Gaia has always been “intrusive”55, just as the Sky has already “fallen”56. A prodigious example of the positive indiscernibleness between cosmology and politics is offered by a Klallam myth commented by Lévi-Strauss in The Naked Man (M692). The myth tells how, in a “visit to the sky”, the native inhabitants of the Earth managed to reduce its warming caused by solar intemperance: “At the beginning, there was only one woman on the Earth, she was alone in the world. She made a husband out of resin, but since the Sun was much warmer than it is today, the man melted. Her children were angry with the Sun because of this. One of them shot an arrow that stuck to the celestial dome, and then many others followed it, stucking to each other and forming a kind of chain, by which the children ascended to the Sky, which looked like a vast prairie. The geese, who were capable of talking at that time, showed them the way to the house of the Sun. Then they found two blind women, whose food one of the boys 53

Stengers/Pignarre (2005). Stengers (2005), p. 995. 55 Stengers (2015), p. 37 ff. 56 Kopenawa/Albert (2015), p. 193 ff. 54

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stole while one woman was passing it to the other. He introduced himself to the women, who informed him of the way, and gave him a tiny basket with six little fruits of Rubis spectabilis. After one last encounter, with the swallows, the brothers arrived at the house of the Sun, an old man who was piling up resinous wood on a huge bonfire, so hot that the visitors thought they were going to die, and from where the intense heat that then reigned on the Earth emanated. The Sun ate the six little fruits, which multiplied inside his body, until he exploded. The virulence of fire has diminished and since then it is no longer so hot on the Earth”57.

Despite of being very brief, the commentary on the myth is quite elucidative: “The visit to the sky, which is undoubtedly a space adventure, but situated in a time when excessive climatic conditions were reigning in both worlds, celestial and terrestrial, leads to a seasonal mediation: either the unbearable heat of the sun is softened, or the hero causes a rain on the earth”58.

Coming from a “cold society”, the myth describes a human enterprise of political climate management through unstable alliances between earthly and celestial peoples. It narrates an uprising of humanity against an enemy in the Sky, in a daring attempt to cool the heat on Earth by fighting the Old Man, who eagerly fed the solar furnaces. Through encounters (with geese and swallows) and trickeries (against the blind women who guarded the passage between the cosmic levels), the children of the earthly matriarch managed to blow up the Old Man’s body by feeding him the magic fruits, used as a kind of Trojan Horse. This corresponds somehow to the cosmological event through which life has operated, for billions of years, the cooling of the planet59. So, in its own terms, the Klallam myth offers an example of control otherwisely anthropic, ultimately neganthropic, of cosmic entropy. The Earth temperature is conditioned by the way the Sun is sacrificially fed: with firewood or fruits? Or, as we would say: with fossil fuels or living beings? Once again we face the divergence between combustion and metabolism, not only as “bioeconomical” modes of energy production and consumption60, but rather as true cosmic powers, which fight for creation and destruction of the coexisting worlds between the Earth and the Sky61. And it is on the outcome of the same cosmopolitical conflict – with the crucial difference that, feeding subterranean furnaces, the Old Man is today among us – that depends, actually and virtually, the continuity of life on Earth.

57

Lévi-Strauss (2011), p. 396. Lévi-Strauss (2011), p. 396. 59 Margulis/Sagan (1995), p. 22. 60 Georgescu-Roegen (2012), pp. 159 – 183. 61 Kopenawa/Albert (2015), pp. 356 – 372. 58

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References Bachelard, Gaston: A psicanálise do fogo, São Paulo 1994 [1949]. Bateson, Gregory: Steps to an Ecology of Mind, Northvale, London 1987 [1972]. Bergson, Henri: A evolução criadora, São Paulo 2005 [1907]. Chakrabarty, Dipesh: The Climate of History: Four Theses, in: Critical Inquiry 35(2), 2009, 197 – 222, https://www.journals.uchicago.edu/doi/abs/10.1086/596640. Danowski, Déborah: Negacionismos, Série Pandemia, São Paulo 2018, https://issuu.com/n1publications/docs/cordel_negacionismos. Danowski, Déborah/Viveiros de Castro, Eduardo: Há mundo por vir? Ensaio sobre os medos e os fins, Desterro [Florianópolis], Cultura e Barbárie, Instituto Socioambiental, 2014. Deleuze, Gilles: Lógica do sentido, São Paulo 2003 [1969]. Georgescu-Roegen, Nicholas: A degradação entrópica e o destino prometeico da tecnologia humana, in: N. Georgescu-Roegen, O descrescimento: entropia, ecologia, economia, São Paulo 2012 [1979]. Haraway, Donna J: Staying with the Trouble: Making Kin in the Chthulucene, Durham and London 2016. Kant, Immanuel: Critique of the Power of Judgment, Cambridge 2000 [1790]. Kant, Immanuel: Idea For a Universal History With a Cosmopolitan Aim, in: I. Kant, Anthropology, History and Education, Cambridge 2007 [1784]. Kolbert, Elizabeth: The Sixth Extinction: An Unnatural History, New York 2014. Kopenawa, Davi/Albert, Bruce: A queda do céu: palavras de um xamã yanomami, São Paulo 2015 [2010]. Latour, Bruno: Facing Gaia: Eight Lectures on the Climate Regime, Cambridge 2017 [2015]. Lévi-Strauss, Claude: Tristes Tropiques, New York 1961 [1955]. Lévi-Strauss, Claude: História de Lince, São Paulo 1993 [1991]. Lévi-Strauss, Claude: O homem nu: Mitológicas IV, São Paulo 2011 [1971]. Lévi-Strauss, Claude: A antropologia diante dos problemas do mundo moderno, São Paulo 2012 [2011]. Liu, Cixin: Death’s End, London 2016 [2010]. Lucretius: On the Nature of Things, Oxford 1910. Margulis, Lynn/Sagan, Dorion: What Is Life?, Berkeley and Los Angeles 1995. Marques, Luiz: Capitalismo e colapso ambiental, Campinas 2016. Massumi, Brian: A User’s Guide to Capitalism and Schizophrenia: Deviations from Deleuze and Guattari, Cambridge 1992. Orwell, George: Resenha de Nós, de Ievguêni Ivánovitch Zamiátin, in: I. Zamiátin, Nós, São Paulo 2017 [1946].

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Prigogine, Ilya/Stengers, Isabelle: A nova aliança: metamorfoses da ciencia, Brasília 1984 [1978]. Prigogine, Ilya/Stengers, Isabelle: Entre o tempo e a eternidade, São Paulo 1992 [1988]. Romandini, Fabián Ludueña: Para além do princípio antrópico: por uma filosofia do Outside, Desterro [Florianópolis] 2012. Schrödinger, Erwin: O que é vida? O aspecto da célula viva. Seguido de Mente e Matéria e Fragmentos Autobiográficos, São Paulo 1997. Stengers, Isabelle: The Cosmopolitical Proposal, in: B. Latour & P. Weibel, Making Things Public: Atmospheres of Democracy, Cambridge 2005. Stengers, Isabelle: No tempo das catástrofes: resistir à barbárie que se aproxima, São Paulo 2015 [2009]. Stengers, Isabelle/Pignarre, Philippe: La sorcellerie capitaliste: pratiques de désenvoûtement, Paris 2005. Valentim, Marco Antonio: Extramundanidade e sobrenatureza: ensaios de ontologia infundamental, Desterro [Florianópolis] 2018. Zamyatin, Yevgeny: A Soviet Heretic: Essays by Yevgeny Zamyatin, Chicago and London 1970. Zamyatin, Yevgeny: Nós, São Paulo 2017 [1924].

Global Ethics and Climate Change By Milene Consenso Tonetto

Introduction In December 2015, the UN Climate Conference (COP 21) approved the Paris Agreement that aims to hold the increase in the global average temperature to no more than 2 C higher than pre-industrial levels and to pursue efforts to limit this increase to 1.5 C1. According to the Intergovernmental Panel on Climate Change (IPCC, 2014), any increase in temperature beyond 2 degrees will bring serious harms to the planet: a loss of ecosystems and biodiversity; rising sea levels; increased droughts, storms, hurricanes and floods; a loss of resources for subsistence, and so on. In addition, the IPCC assessment for public policymakers highlights considers that “the human influence on the climate system is clear, and the recent anthropogenic emissions of greenhouse gases are the highest in history”2. The leaders at the meeting in Paris agreed with the general aim of limiting global warming. But there are several divergences over who should be responsible for the expenses and commitments required to reduce emissions. The search for cost reduction in industrial production has led rich countries to outsource greenhouse gas (GHG) emissions to developing countries. Countries like China, Brazil and India are burning fossil fuels to produce goods for American, European and other economies, and not just for domestic consumption. In the case of Brazil, the Amazon rainforest, which plays a crucial role in mitigating climate change, is threatened by deforestation3 primarily for cattle ranching and soy production. Given this, one can ask: to what extent are consumers and companies that buy Brazilian beef and soybeans responsible for acting to counter climate change? Should the outsourcing of production reduce the responsibility of rich countries concerning the environmental impacts of their consumption habits? Or could we coerce individuals and communities to limit their emissions even if it required a reduction in standards of living in rich coun1

UN, 2015, Art. 2. IPCC, 2014, p. 02. 3 Brazil’s National Institute for Space Research (INPE) released on November 18, 2019 an estimated deforestation rate for the nine states that compose the Brazilian Amazon. “The estimated value is 9,762 km2 for the period from August 2018 to July 2019. This value represents an increase of 29.54 % in the ratio of deforestation rate calculated by PRODES 2018, which was 7.536 km2” (INPE, 2019). 2

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tries and prevented poor countries from developing? How can a fair model be developed to recognize current and historical beneficiaries and not hinder the development of those who have benefited less? Philosophical discussions on climate change and global ethics have differentiated two main questions concerning responsibilities and equitable distribution, namely: 1) what principles should guide an equitable distribution of the capacity to emit greenhouse gases? And 2) who should bear the burden of climate change? That is, who should pay for the necessary mitigation, adaptation and compensation?4 The link between these issues leads to the central problem of this chapter: climate change has harmful effects that exacerbate problems related to economic inequalities and social justice, because they bring negative consequences mainly to the most disadvantaged. The Oxfam report, Extreme Carbon Inequality (2015), shows that half of the world’s poorest population will be the most threatened by storms, droughts and other catastrophic events caused by climate change. However, it is responsible for only 10 % of carbon emissions, while 10 % of the richest countries produce half of the world’s emissions5. This chapter will analyse which principles should govern the development of policies to address global climate change. I will argue that hybrid principles can ensure that those who already do not have enough social, economic and cultural resources are not further harmed by climate change. A fair distribution model should recognize the historic contribution of emissions to climate change, the current beneficiaries of greenhouse gas (GHG) emissions, the ability to pay taxes, and the importance of sustainable development for those who have benefited little from emissions. In the final part of the chapter, I will discuss the currently rising Amazon deforestation in Brazil to assess the strengths of hybrid principles.

I. Global ethics and principles of climate ethics Global ethics takes a specific approach and contains a fundamental commitment to include urgent global concerns in decision making. It is important not only to consider ethical issues beyond national borders, but also how these issues are addressed and what ethical framework and assumptions are adopted. According to Heather Widdows, it is possible to trace three elements that together define the global ethics approach: 1) its frame is global; 2) it is multidisciplinary; and 3) it combines theory and practice6. When we analyse the problem of climate change, it is easy to see how

4

Caney (2015); Widdows (2011). OXFAM, 2015, p. 01. 6 Widdows (2011), p. 06.

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the logic of global ethics works7. No nation or region can confront climate change alone. Only a shared response, where each party takes the necessary actions, will be sufficient to deal with this problem. Climate change “does not respect” national boundaries and “the behaviour” of one nation or region can affect others. Thus, responses to climate change are always global in scope. For global ethics, decision making must take place within a global order – the ethical locus is the globe. The other two elements of global ethics are also clearly identified when attempting to tackle climate change. The answers to this problem are necessarily multidisciplinary: scientific knowledge is crucial for the justification of legal, moral and political arguments. And theory and practice are linked as ethicists strive to propose fair and effective practical solutions to climate change. To deal with climate change, global ethical discussions hold that we must assume its burden. But what does that mean? What are the duties and responsibilities that must be assumed? According to Caney8, we can distinguish between at least three different types of duties. First, there is a duty to reduce the activities that cause climate change. This duty requires people to be involved in “mitigation” actions. Obligations would include, for example, a duty to reduce GHG emissions. In practice, this would require people to adopt policies such as reducing air travel and car use, using less electricity, creating and protecting carbon sinks, and so on. This type of obligation can be called a “mitigation duty”9. The second type of duty is to allocate resources to protect people from the harmful effects of climate change. To employ the IPCC’s use, this duty implies facilitating and supporting “adaptation” to climate change and enabling people to live with these changes. For this reason, it can be called a “duty of adaptation”. It requires investment in activities such as building infrastructure to protect coastal populations; subsidizing people to move away from threatened coastal settlements; using resources to prevent infectious diseases; supporting irrigation systems in drought-prone areas; sending external aid to victims of malnutrition; and so on10. Third, there are also duties of compensation, that is, compensating those who have been harmed11. It is important to point out that the costs of adapting to climate change are greater than the costs of mitigating emissions. However, although greater support is given to mitigation actions, it is also widely recognized that adaptation actions are necessary. The emission of GHG has been occurring since the Industrial Revolution, and even if the emission levels were drastically reduced, there would still be an increase in temperature and sea levels.

7

Widdows (2011), p. 228. Caney (2010b). 9 Caney (2010), p. 204. 10 Caney (2010b). 11 Caney (2014), p. 380. 8

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Considering the duties mentioned above, the Paris Agreement (UN, 2015) defends, in its Article 2: “This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”12.

The Paris Agreement, then, recognizes the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC), which was first adopted in the Kyoto Protocol. The main difference now is that the Paris Agreement no longer considers the division of responsibilities between developed and developing countries (Annex I and Annex II countries). To stabilize the global temperature, all the highest emitters, including both developed and developing countries (such as China, India and Brazil) must contribute. The CBDR-RC is still guiding the responsibility of the parties, but it is no longer interpreted as a strict division of responsibilities. It has been reframed in a way that ensures universal participation while respecting local differences and vulnerabilities. In this way, Article 4 of the Paris Agreement requires that each party communicates its nationally determined contributions (or NDCs), including both developed and developing parties. The only exception is for the least developed countries and small island states. Philosophers working on climate change have supported the CBDR-RC for three main reasons: 1) historically, industrialized countries have contributed more to climate change and, on a per capita basis, continue to contribute more; 2) industrialized countries have the greatest capacity to pay for climate mitigation and adaptation; and 3) industrialized nations have benefited more from GHG emissions, while less developed nations are and will continue to suffer most from climate change13. However, the following questions remain: how can we differentiate responsibilities in the face of climate change? How can we establish equitable distribution? In the next section, I will analyse some principles of climate ethics to answer these questions.

II. Principles for distributing GHG emissions To partially fulfil the mitigation duty, the total volume of GHG emissions needs to be reduced. Therefore, a principle is also needed to specify the fair distribution of GHG emissions. Henry Shue supports the concept of subsistence emissions14, while other ethicists maintain that there should be equal emissions per capita15. In

12

UN, 2015, Art. 2. Hourdequin (2015), p. 158. 14 Shue (2014). 15 Singer (2011).

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addition, there are those who claim that equal charges should not impede the right to development16. In the following, I will discuss these principles.

1. Equal burdens The principle of equal burdens can be stated as follows: each state is required to reduce its emissions by a share of the burden of the overall emissions reduction that is equal to the burden of every other state17. However, according to Moellendorf, this principle of equality can be problematic in climate ethics and can lead to injustices. It does not satisfactorily take into account the background of certain injustices, as it requires everyone to share the burden, including developing countries. Thus, “when asked to carry a burden, and guided by the idea of equality, it seems plausible that the burdens should be equalized, if all other things between parties are equal”18. For him, the principle does not respect the right of these countries to develop because it requires them to assume costs that could stop their development in order to maintain high standards of living in developed countries. Moellendorf therefore argues that “a principle that does not permit emissions growth in underdeveloped states is incompatible with the right to development”19. The principle of equal burden requires that all countries, even developing ones, share part of the burden of reducing CO2 emissions. Moellendorf argues that a proposal to reduce emissions by 50 % in underdeveloped and developing countries would result, for example, in delaying or even reversing rural electrification, because electricity generation in much of the underdeveloped world depends on the use of coal facilities. He points out that “[i]n 2000 in Bangladesh an average of 0.22 Mt CO2 per person was emitted, compared to over 20 Mt in the USA. Were Bangladesh to halve its total emissions, its per capita CO2 emissions would be merely 0.11 Mt, an amount that given current technological capacity would ensure its persistent underdevelopment”20. Henry Shue also offers a compelling moral reason for rejecting such a proposal. According to him, “those living in desperate poverty ought not to be required to restrain their emissions, thereby remaining in poverty, in order that those living in luxury should not have to restrain their emissions…Any strategy of maintaining affluence for some people by keeping other people at or below subsistence is, I take it, patently unfair because so extraordinarily unequal—intolerably unequal”21.

16

Moellendorf (2009). Moellendorf (2009), p. 118. 18 Moellendorf (2009), p. 119. 19 Moellendorf (2009), p. 122. 20 Moellendorf (2009), p. 117. 21 Shue (2014), p. 50.

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It is unfair to demand that very poor countries bear costs that would reduce progress and development in order to maintain more privileged lifestyles in developed countries. Emission reductions may relate to different measures according to each society. Reductions in rich countries can be significant, but they can be related to luxurious habits; while reductions in poor countries can mean the loss of essential goods, threatening the right to development.

2. Equal shares or equal quotas issued per capita Another principle that is based on equity is equal share quotas. According to Peter Singer, the principle of equal shares has the great merit of simplicity: “It is a timeslice principle – it takes no account of the past and gives everyone an equal share of the atmosphere from now on”22. Many developing nations are using much less than their equal per capita quota, but even if they gave up the right to make claims against industrialized nations based on historical responsibility, they would still benefit from the equal quota system. To make this clearer, Singer explains what equal shares means in practice. Suppose that we intend to stabilize greenhouse gas emissions at a level that prevents us from exceeding 450 ppm of carbon dioxide: “It is controversial how much carbon we could emit per person while remaining below that level, but one plausible figure is two tons of carbon dioxide per person per year”23. It is possible to compare the actual emissions per capita of some countries with this estimate of two tons of carbon dioxide per person that could be emitted each year. According to Singer, in 2010, the United States, Canada and Australia produced about twenty tons of carbon dioxide per person per year, while Germany produced eleven tons, China about four, India just over one ton and Sri Lanka only two-thirds of a ton. “This means that Sri Lanka could triple its emissions and India could almost double its emissions while still remaining within their per capita shares. China would need to halve its current emissions, Germany would have to reduce them by more than 80 percent, and most dramatically of all, the United States, Canada and Australia would have to reduce their emissions to only one-tenth of present levels”24.

One question that arises here is whether rich countries would be able to adopt this principle of equal shares per capita. It would take great effort for industrialized countries like Germany and the United States to make such drastic cuts in the short term and without devastating economic consequences. However, Singer presents two mitigating factors to consider before judging this principle to be unrealistic: “The first is that making greenhouse gas emission tradeable quotas would ease the transition to a 22

Singer (2011), p. 224. Singer (2011), p. 224. 24 Singer (2011), pp. 224 – 225.

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low-emissions economy”25. The emissions market operates on the economic principle that if you can buy something cheaper than you can produce it, then it is better to buy it than to produce it. Thus, “[i]n this case, what you buy will be a transferable quota to produce greenhouse gases, allocated on the basis of an equal per capita share”26. The international carbon market implies that cuts in carbon emissions will be made at the lowest possible cost, causing the least possible damage to the global economy. The second factor he considers is that “a carbon trading scheme gives countries with few greenhouse gas emissions – generally, poor countries – an incentive to keep their emissions low, so that they have more emissions quota to sell to rich countries that are over their quota”27. Singer even argues that international emissions trading could contribute to solving the problem of poverty as it would involve the transfer of resources from rich countries to the poor, not as altruism, but as payment for a valuable commodity. As may be evident, Singer seems to defend equal per capita emissions from utilitarian arguments. Moellendorf argues that the principle of equal shares (quotas) has an advantage over that of equal burdens in that it allows some room for growth in the poorest countries. That is, they can still use their entire quota of emissions, while the richest must make a large reduction. He says that using this model, and considering figures from the IPCC’s 4th Assessment Report, if we take the period from 2000 to 2050, the country of Bangladesh would be authorized to emit 4.5 times more emissions by 2050 than in 2000. Therefore, there would be some consideration of the right to development28. In addition, this principle authorizes those countries that emit less emissions than their targets to exchange them. This allows wealthier states to buy additional emissions quotas, which is more efficient and less difficult than requiring them to cut emissions. Thus, poor states can benefit by making their low emissions a source of income. Although this approach is widely supported, it is subject to several difficulties29. For example, Caney considers it defective because it is insensitive to people’s different needs and vulnerabilities30. Granting equal emission rights is unfair since some people need more of these rights than others. This objection presents a serious challenge and requires consideration in the formulation of hybrid principles.

25

Singer (2011), p. 225. Singer (2011), p. 225. 27 Singer (2011), p. 225. 28 Moellendorf (2009), p. 126. 29 Caney (2011), pp. 90 – 97. 30 Caney (2011), p. 97.

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III. Principles for distributing the costs of combating climate change 1. Polluter-Pays Principle (PPP) Some reflections on global justice and on Article 3 of the Framework Convention on “common but differentiated responsibilities” led to the conclusion that a morally acceptable international treaty should distribute the responsibilities of states according to their historical contribution to climate change. This position calls for a principle used in environmental ethics, namely, the polluter-pays principle (PPP). Basically, the principle defends that polluters should pay in proportion to the amount of pollution they cause. Henry Shue defends a version of this principle and considers it to be the first principle of climate justice: “When a party has in the past taken an unfair advantage of others by imposing costs upon them without their consent, those who have been unilaterally put at a disadvantage are entitled to demand that in the future the offending party shoulder burdens that are unequal at least to the extent of the unfair advantage previously taken, in order to restore equality”31.

Thus, the principle is used to argue that affluent, industrialized societies should bear the greatest burden when dealing with climate change. However, some commentators argue32 that the principle alone is not enough and that it can face a number of difficulties. First, there is the problem of uncertainty and past generations33. Estimating the negative effects of climate change can be difficult in scientific terms. Given this observation, it may be even more difficult to establish who caused this or that damage with the necessary precision to demand reparations. This problem arises because human beings have been contributing to climate change for more than one hundred and fifty years. Since the Industrial Revolution, people in European and North American societies have been emitting increasing amounts of GHG. Many of these, however, were members of past generations and are dead. This poses a simple but difficult problem for the PPP: who should pay when the polluter is no longer alive? One possible answer is that “members of industrialized countries should pay for the emissions of earlier generations on the grounds that they have all inherited benefits that stem from excessive use of the earth’s atmosphere and that if they enjoy the benefits they should cover some of the costs”34. It seems, therefore, that the PPP cannot fully answer the question of who should deal with climate change and that it should

31

Shue (2014), p. 183. Caney (2010b). 33 Caney (2014); Meyer (2013); Posner/Weisbach (2010). 34 Caney (2014), p. 381. 32

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be complemented by other considerations, namely, the benefit received. I will analyse this beneficiary-pays principle in the next section. Second, there is the problem of “excusable ignorance”35 : can polluters be held responsible for harmful effects if they did not know that their carbon emissions would cause climate change (an understanding of which only occurred around the 1990s)? Some commentators hold that making polluters responsible for harmful effects when they can claim ignorance seems to be unfair and that this can reduce the appeal to equity, the principle’s strongest point. Caney, however, argues that there are some circumstances in which it is appropriate to hold people accountable, even if they were unaware of the effects of their actions. For example, in some situations people involuntarily cause harm but also benefit from harmful activity. In such circumstances, it does not seem unfair to punish them for harmful actions. It is true that they could not have been expected to know the consequences of their actions. However, since they have profited from this activity, one can ascribe them responsibilities without leaving them, for example, worse off than they were prior to the commission of the harmful actions36. A third objection states that requiring people to pay according to their emissions would be unfair to those who have the lowest standards of living. It is unreasonable to make the poor pay for their emissions when said emissions are necessary to achieve a minimum standard of living. As we will see below, Caney37 argues that this objection is of considerable practical importance, so he holds that the PPP should be complemented by an additional principle.

2. Beneficiary pays The basic argument for defending this principle is as follows: past generations’ GHG emissions activities have benefited developed countries. Any agent should support, as a matter of justice, practices that manage the negative effects of the activities from which they benefit. For this reason, those countries that have benefited the most from activities that cause GHG emissions should take most responsibility for climate justice. Unlike the PPP, which places the responsibility for pollution directly on those who have caused or are causing environmental damage, the beneficiary-pays principle holds that those who have benefited most from the development of climate change are responsible for the costs of adaptation and damage prevention. But that responsibility is about paying the costs and does not mean that those who benefited from pollution necessarily caused it. Therefore, those who have benefited from projects that have exacerbated global warming and exploited the environment are responsible for the financial costs of making adaptations or providing reparations for those that 35

Caney (2014), p. 380; (2010b), p. 208; Meyer (2013); Posner/Weisbach (2010). Caney (2014), p. 381; (2010b), p. 210. 37 Caney (2010b), p. 206. 36

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have been harmed by those projects. Therefore, “if we in a developed nation now benefit from huge power plants built by our ancestors who knew nothing of global warming and its disastrous consequences, we may still owe reparations to people adversely affected by the smoke that bellows out of their chimneys”38. This is not because people in developed nations today are responsible for this happening and for not stopping this activity, but simply because of the advantage that they gained while others did not. One of the criticisms of the beneficiary-pays principle relates to the problem of past generations discussed in the previous section. The main emitters responsible for climate change are part of past generations and cannot assume the costs involved with adaptations and reparations. This again raises the question of who should pay when the polluter is no longer alive. To answer this question, some call attention to the beneficiary-pays principle39. Shue argues that the current inhabitants of a country are not completely disconnected from its previous inhabitants and thus could take responsibility for the actions of their ancestors. They enjoy the benefits of the policies adopted by previous generations, so “today’s generation in the industrial states is far from completely unrelated to the earlier generations going back all the way to the beginning of the Industrial Revolution”40. Neumayer (2000) maintains a similar position. According to him, “the current developed countries readily accept the benefits from past emissions in the form of their high standard of living and should therefore not be exempted from accountability for the detrimental side-effects with which their living standards were achieved”41. For Caney, the proposal “that the industrial economies of the first world should pay seems, on the face of it, unfair, for it does not make the actual polluters pay. Their conclusion, then, is not supported by the PPP: indeed it violates the PPP”42. This is Caney’s main criticism: “the beneficiary-pays principle is not a review of the PPP approach, but an abandonment of it”43. Such a principle can justify the imposition of costs on someone who did not cause environmental damage but who nevertheless benefited from it. Caney argues, then, that the distribution of costs to tackle climate change must reflect both ability to pay and contribution to the problem.

3. Ability to pay The principle of the ability to pay assigns responsibilities to agents, not by considering who caused the problem in the past, but by assessing who is better able to 38

Widdows (2011), p. 245. Shue (2014); Neumayer (2000). 40 Shue (2014), p. 186. 41 Neumayer (2000), p. 11. 42 Caney (2005), p. 756. 43 Caney (2005), p. 757.

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bear the cost of fighting the problem44. Those who defend this principle claim that one should not discuss historical injustices and how to assign blame if those who are identified cannot or are reluctant to pay. Rather than tracking difficult causal networks of injustice, we must be pragmatic and consider only those who can finance the necessary changes. This principle suggests, then, that the costs of climate change should be borne by the rich and should be divided in proportion to their wealth. But some objections can be raised. First, why does the fact that a country can afford to finance mitigation and adaptation mean that it should bear this responsibility? The objection is based on the following assumption: it is wrong to assume the burden of a problem that is not your responsibility. This appears to be unfair and, therefore, the ability-to-pay principle lacks an intuitive appeal for justice, as does the PPP. According to Caney, this is not plausible45. Whatever the scenario of climate change in the future, someone will always be assuming a burden that is not theirs. Caney considers the following options: “We might say that the advantaged should pay (option 1) or that the poor should pay (option 2). In both cases, however, some would be bearing a burden that stems from a problem that is not of their doing. We might then hold that nothing should be done (what is termed ‘business as usual’): this is option 3”46. But that would also impose a burden on someone who has not contributed to climate change, as in this case the victims will be future generations and they will have to assume a problem that they did not cause. Furthermore, if the richest do not pay and nothing is done, then the poorest and most vulnerable populations will suffer the worst consequences. If we could make a choice between the suffering of those who are already disadvantaged (who often fall below a minimum acceptable standard of living) or the suffering of the privileged (in a way that does not affect their ability to survive or that leaves them below a minimum standard), then it would be unfair to choose the disadvantaged to suffer more consequences. Thus, all available options will face significant criticism. Therefore, this objection cannot be used to undermine the ability-to-pay approach. Caney, however, takes into account some observations that modify the principle of the ability to pay, for example, that it would be counterintuitive to ignore a country’s historic contribution to climate change or its inability to pay. Given these observations, Caney argues for an approach based on hybrid principles.

44

Shue (2014), p. 60; Caney (2010b). Caney (2010b), p. 214. 46 Caney (2010b), p. 214. 45

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4. Hybrid principles: Poverty-Sensitive Polluter-Pays Principle (PSPPP) and the History-Sensitive Ability-to Pay-Principle (HSAPP) Caney maintains that the distribution of costs to address climate change should reflect both ability to pay and contribution to the problem. He takes into account the idea that everyone has the right not to suffer climatic impacts that destroy their basic interests. From this, Caney argues that “persons have the human right not to suffer from the disadvantages generated by global climate change”47. Everyone has costs associated with protecting that right. However, those who live in developed countries have the most urgent duties, as they reflect their wealth and carbon-intensive lifestyle. The main point of Caney’s position is that the PPP needs to be supplemented, and this is done by assigning duties to the most advantaged, something that is in line with the ability-to-pay approach48. Given the strong call for justice, Caney considers the PPP to be a principle for financing mitigation and adaptation to climate change. But, as we have seen, he does not consider it sufficient due to the difficulties in assessing the pollution caused by previous generations. Thus, the PPP can only be used to deal with some of the effects of climate change. There will always be some causes that cannot be traced or followed. He holds that some developing countries, which are currently polluting, are unable to compensate for their emissions. These countries should be partially exempted by the PPP because the requirement for compensation will perpetuate and exacerbate their poverty49. Duties to tackle climate change should not cause people to fall below an acceptable minimum standard of living. It is important to highlight that these points are not intended to argue for the abandonment of the polluter-pays principle when determining the duties of prevention and adaptation. Rather, they point out ways in which the PPP should be complemented. Caney claims that we need a principle of justice to deal with what we might call “remaining issues”, namely, the damaging climate changes that stem from “(a) the emissions of earlier generations, (b) non-human-induced climate change, and (c) the (legitimate) emissions from the disadvantaged”50. The PPP can be a principle for dealing with climate change, but it must be qualified by not forcing people to pay for the emissions necessary for survival or causing them to fall below an acceptable minimum standard of living. In this way, Caney formulates a qualified version of the principle, namely, the Poverty-Sensitive PolluterPays Principle (PSPPP):

47

Caney (2005), p. 768. Caney (2005), p. 769. 49 Caney (2010b), p. 2012. 50 Caney (2010b), p. 2013. 48

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“Principle 1: Persons should bear the burden of climate change that they have caused so long as doing so does not push them beneath a decent standard of living (the Poverty-Sensitive Polluter Pays Principle)”51.

Given that the PPP cannot cover all aspects of the problem, as we have the “remaining issues” (namely, non-anthropogenic climate change, emissions from the poor and emissions from past generations), Caney combines this principle with the History-Sensitive Ability-to Pay-Principle (HSAPP): “The duties to bear the Remainder should be borne by the wealthy but we should distinguish between two groups – (i) those whose wealth came about in unjust ways, and (ii) those whose wealth did not come about in unjust ways – and we should apportion greater responsibility to (i) than to (ii). (the History-Sensitive Ability to Pay Principle)”52.

Caney’s position is hybrid, as it combines the two principles separately. Thus, he argues that there is a duty on the part of those who are able to pay, even when they have not contributed to the damage. The duty to pay or invest in mitigation and adaptation measures must exist to the extent that these duties will not be overly demanding. For this reason, he distinguishes between countries that have become unjustly wealthy (for example, those that have benefited from slavery) and those that have justly accumulated their wealth. Both groups have duties to pay. However, those who have become unjustly wealthy have a greater responsibility.

IV. Applying hybrid principles: mitigation, adaptation and emission policies In this final section, I would like to apply hybrid principles to our climate responsibilities and discuss Brazil’s current spike in deforestation. Under the Paris Agreement, Brazil has made nationally determined contributions (NDCs), committing itself, among other things, to 1) promoting a reduction of its GHG emissions by 37 % below 2005 levels by 2025; and 2) reforesting 12 million hectares by 2030 (NDC, 2015). Unfortunately, we are going in the opposite direction: data from Brazil’s National Space Research Institute (INPE) shows that 830 square kilometres (km2) of rainforest was cleared in the “Legal Amazon” during May 2020, bringing the total clearing since August 1st to 6,437 km2. A substantial part of this illegal deforestation is linked to agricultural export commodities. According to a recent study53, this increase was also driven by the current dismantling of the Brazilian IBAMA54 and

51

Caney (2010b), p. 218. Caney (2010b), p. 218. 53 Cf. (Rajão et al. 2020). 54 Brazilian Institute of Environment and Renewable Natural Resources (IBAMA). 52

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ICMbio55 and, consequently, the reduction of inspection in logging, mining, and so on and less space in the political discourse for environmental protection. There are reports of falling investment, and consumers and international investors have raised questions about the country’s environmental policy: “International buyers of Brazil’s agricultural commodities have raised concerns about products that are contaminated by deforestation (i. e., deforestation occurred during the process of producing the product)”56. Now, let me employ the hybrid model to guide the development of policies and how justly to put it into practice. First, countries are often considered to be solely responsible for the duties of mitigation and adaptation. This is because international treaties such as the Kyoto Protocol, the UNFCCC Framework Convention and the Paris Agreement (2015) set out requirements for much of the fight against climate change. One of the consequences of the hybrid position is that duties fall not only on states, but also on other types of agents. For Caney, “[T]he logic of the Poverty-Sensitive Polluter-Pays Principle is that all (sufficiently affluent) agents who are causally responsible for high emissions are under an obligation to cut back their emissions according (and/or spend money on adaptation)”57. Many agents, in addition to national governments, play a causal role, namely, individuals, companies and political authorities. Thus, considering the Brazilian case, we can argue that all Brazil’s economic partners should share the responsibilities for indirectly promoting deforestation and GHG emissions that will exacerbate the effects of climate change. Our food system, including changes in land use linked to agriculture, fertilizer manufacture, and food storage and packaging, is currently responsible for a quarter of all GHG emissions that cause climate change. Then, as individuals and as a global society, what we decide to eat is crucial in addressing climate change. According to a Greenpeace Report, global meat and dairy production consumption must be cut in half by 2050 to avoid dangerous climate change and keep the Paris Agreement on track (Greenpeace, 2018). Another consequence of the hybrid position is that according to the History-Sensitive Ability-to-Pay Principle (HSAPP), the duty to pay for adaptation measures and invest in mitigation should be greater for those whose 55 Chico Mendes Institute for Biodiversity Conservation (ICMBio). This is an independent public body in Brazil, linked to the Ministry of Environment (MMA). Along with the IBAMA, it oversees the National Environmental System (SISNAMA). 56 Following reports that Brazil’s current deforestation rate is the highest in the last 10 years, a recent study argues that “[a]lthough most of Brazil’s agricultural output is deforestation free, we find that 2 % of properties in the Amazon and Cerrado are responsible for 62 % of all potentially illegal deforestation and that roughly 20 % of soy exports and at least 17 % of beef exports from both biomes to the EU may be contaminated with illegal deforestation. Raising awareness is important to press Brazil to conserve its environmental assets and to promote international political will for cutting telecoupled GHG emissions. This could be achieved, for example, through the environmental safeguards of the Mercosur-EU trade agreement, which require EU imports to comply with the export country’s legislation” (Rajão et al., (2020)). 57 Caney (2010b), p. 219.

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wealth came about in unjust ways, for instance, those that have benefited from illegal deforestation. Companies and commodity traders must track their supply chain to monitor zero-deforestation commitments and finance forest restoration. Second, although the hybrid position argues that the most advantaged have greater leadership responsibility, the argument also allocates duties to the least favoured. If the less advantaged can develop in a way that does not require high levels of combustion of fossil fuels, and can do so without great cost to themselves, then it would be wrong for them to follow a high-emissions policy58. Brazil is considered the world’s most biodiverse country, with vast forests, water resources, mineral reserves, and so on. However, its economy is weakening and disparities in income remain high. According to the OECD (2015), Brazil has a comprehensive and advanced legislative framework for environmental management and sustainable use of biodiversity. The country’s Forest Code promises to reconcile the objectives of biodiversity conservation and agricultural development, and it has first-rate deforestation monitoring systems. What it needs right now is the political will to remain vigilant and take concrete steps to thoroughly implement all the environmental programmes to reduce deforestation. Third, one might think that the hybrid position justifies a policy according to which future generations must pay for climate change, as they will be richer than current generations and therefore better able to pay. This would lead to a policy of not preventing climate change at the present time and adapting to the changes that occur in the future. But the hybrid principle does not support this implication, and there are at least two reasons for this: “First, although future people may have more wealth, the costs will also be much greater in the future”59. That is, costs will be lower if we prevent the problem from arising at all than allow it to arise and later try to adapt to it. The second reason is that “unless mitigation takes place now, there will be dangerous climate change to which people are unable to adapt”60. A failure in mitigation, therefore, would inevitably result in loss for some future people and “it would be wrong knowingly to allow a wrong to occur with a view to seeking to compensate those wronged later”61. People should not be harmed in the first place. Therefore, mitigating now is not only cheaper, but it is also necessary if we are to respect people’s fundamental rights and interests. The links between the Amazon rainforest and future generations’ interests are clear. The rainforest plays a vital role in regulating the Earth’s climate and is one of our best defences against climate change. According to recent studies, evidence already exists to affirm that the loss of the Amazon Forest is a tipping point, that is, an element of the terrestrial system that is undergoing sudden and potentially irreversible changes62. This growing threat must be considered in 58

Caney (2010b), p. 220. Caney (2010b), p. 220. 60 Caney (2010b), p. 220. 61 Caney (2010b), p. 220. 62 Nobre (2019). 59

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political and economic action to reduce GHG emissions, since “Deforestation and climate change are destabilizing the Amazon (…). Estimates of where an Amazon tipping point could lie range from 40 % deforestation to just 20 % forest-cover loss. About 17 % has been lost since 1970”63. The growing threat of abrupt climate change and its irreversible effects must immediately compel political and economic action on emissions and deforestation. These actions must respect the lands and rights of both indigenous peoples and future generations.

Final remarks In this chapter I have tried to address the question of how the burdens of climate change should be distributed in a fair way. To accomplish this, it is necessary to appreciate that climate change is a global problem which has intergenerational effects and exacerbates problems related to economic inequalities and social justice. Thus, the principles guiding climate ethics should prioritize a model that recognizes current and historical beneficiaries, who benefited from pollution and have the ability to pay for the damage caused and does not prevent the sustainable development of those who have benefited less from emissions. The analysis of climate ethics principles showed that the hybrid model has the strongest appeal to justice since it combines the fairness of the polluter-pays principle with the practicality of the ability-to-pay principle. An application of the hybrid model to the Brazilian case of deforestation shows how combating climate change can prioritize sustainable development, respect inviolable human rights, and at the same time, support the development of the poorest countries with the concern to present and follow sustainable measures. However, to say that the hybrid model would be the fairest way to distribute the burdens associated with global climate change is not to say that it is the most feasible for the different kinds of policies proposed to reduce GHG emissions. This is a question open to future investigations. It is necessary to assess whether the hybrid principles can also be applied to the different kinds of policies, such as carbon quotas, carbon taxes, and so on, and consider what set of other practical measures is needed to guarantee the hybrid model.

References Arnold, Denis G. (ed.): The Ethics of Global Climate Change, Cambridge 2011, pp. 77 – 103. Baer, Paul et al.: Greenhouse Development Rights: A Framework for Climate Protection That Is “More Fair” Than Equal Per Capita Emissions Rights, in: S. Gardiner et al., Climate ethics: essential readings, Oxford 2010. 63

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Borgogno, Santiago Truccone: Justicia intergenerational. Ensayos desde el pensamento de Lukas H. Meyer, Córdoba 2017. Caney, Simon: Cosmopolitan Justice, Responsibility, and Global Climate Change, in: Leiden Journal of International Law, Cambridge, vol. 18, 2005, pp. 747 – 775. Caney, Simon: Climate Change, Human Rights and Moral Threshold, in: S. Gardiner et al., Climate ethics: essential readings, Oxford 2010a, pp. 163 – 177. Caney, Simon: Climate Change and the Duties of the Advantaged, in: Critical Review of International Social and Political Philosophy, vol. 13, 2010b, pp. 203 – 228. Caney, Simon: Climate change, energy rights, and equality, in: D. Arnold (org.), The Ethics of Global Climate Change, Cambridge 2011, pp. 77 – 103. Caney, Simon: Just emissions, in: Philosophy & Public Affairs 40, issue 4, 2012, 255 – 300. Caney, Simon: Climate Change, in: D. Moellendorf/H. Widdows, The Routledge Handbook of Global Ethics, Abingdon, Oxon 2015, pp. 372 – 386. Gardiner, Stephen M.: A Perfect Moral Storm: Climate Change, Intergenerational Ethics and the Problem of Moral Corruption, in: Environmental Values, 15, no. 3, 2006, 397 – 413. Gardiner, S. et al.: Climate ethics: essential readings, Oxford 2010. Gardiner, Stephen M.: A perfect moral storm: the ethical tragedy of climate change with a new afterword, New York 2011. Greenpeace International: “Greenpeace calls for decrease in meat and dairy production and consumption for a healthier planet”, 2018. Available at: https://www.greenpeace.org/interna tional/press-release/15111/greenpeace-calls-for-decrease-in-meat-and-dairy-production-andconsumption-for-a-healthier-planet/. Accessed: 27/07/2020. Hourdequin, Marion: Environmental Ethics. From theory to practice, London 2015. INPE: A estimativa da taxa de desmatamento por corte raso para a Amazônia Legal em 2019 é de 9.762 km2, 18 Nov. 2019. Available at: http://www.inpe.br/noticias/noticia.php?Cod_Noti cia=5294. Accessed: 19 Nov. 2019. IPCC, 2014: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Summaries, Frequently Asked Questions, and Cross-Chapter Boxes. A Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Field, C.B. et al. (eds.)]. World Meteorological Organization, Geneva, Switzerland, 190 pp. Available at: https://www.ipcc.ch/report/ar5/wg2/. Lenton, Timothy M. et al.: Climate tipping points — too risky to bet against, in: Nature 575, 2019, 592 – 595, doi: 10.1038/d41586-019-03595-0. Lomborg, B.: The Skeptical Environmentalist: Measuring the Real State of the World, Cambridge 2001. Moellendorf, Darrel: Global Inequality Matters, Basingstoke 2009. Moellendord, Darrel: Treaty norms and climate change mitigation, in: Ethics and International Affairs, vol. 23, n. 3, 2009b, pp. 247 – 265. Moellendorf, Darrel: A Right to Sustainable Development, in: The Monist, vol. 94, n. 3, 2011, pp. 433 – 452.

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NASA: Climate Change: Vital Signs of the Planet. Available at: https://climate.nasa.gov/vitalsigns/global-temperature/. Accessed: 03/02/2020. NDC (2015): Pretendida Contribuição Nacionalmente Determinada Para Consecução do Objetivo da Convenção-Quadro das Nações Unidas Sobre Mudança do Clima. (in Portuguese) Federative Republic of Brazil, 10 pp. Available at: https://www4.unfccc.int/sites/ndcstaging/ PublishedDocuments/Brazil%20First/BRAZIL%20iNDC%20english%20FINAL.pdf. Accessed: 24/07/2020. Neumayer, Eric: In Defence of Historical Accountability for Greenhouse Gas Emissions, in: Ecological Economics, vol. 33, 2000, pp. 185 – 192. OECD. 2015. Environmental Performance Reviews: Brazil 2015. Available at: https://www. oecd.org/environment/country-reviews/, doi: http://doi.org/10/8bn. Nobre, Carlos A.: To save Brazil’s rainforest, boost its science, in: Nature 574, 455, 2019, doi: 10.1038/d41586-019-03169-0. Parfit, Derek: Reasons and Persons, Oxford 1984. Posner, E./Weisbach, D.: Climate Change Justice, Princeton, NJ 2010. Rajão, R. et al.: The rotten apples of Brazil’s agribusiness, in: Science, vol. 369, issue 6501, 17 July 2020. Rawls, John: Uma teoria da Justiça, São Paulo 2016. Sandler, Ronald: Environmental Ethics: Theory in Practice, Oxford 2018. Sen, A.: Equality of What?, in: S. Mcmurrin, Tanner Lectures on Human Values, vol. 1, Cambridge 1980. Shue, Henry: Basic Rights, Subsistence, Affluence, and U.S. Foreign Policy, Princeton 1980. Shue, Henry: Global Environment and International Inequality, in: International Affairs, vol. 75, 1999, pp. 531 – 45. Shue, Henry: Climate, in: D. Jamieson (ed.), A Companion to Environmental Philosophy, Malden 2001, pp. 449 – 459. Shue, Henry: Subsistence Emissions and Luxury Emissions, in: Climate Justice Vulnerability and Protection, Oxford 2014, pp. 46 – 67. Singer, Peter: One World: The Ethics of Globalization, New Haven 2002. Singer, Peter: Practical Ethics, Cambridge 2011. United Nations: Framework Convention on Climate Change. Adoption of the Paris Agreement, 21st Conference of the Parties, Paris: United Nations, 2015. Available at: https://unfccc.int/ files/essential_background/convention/application/pdf/english_paris_agreement.pdf. Accessed: 27/07/2018 United Nations: Our Common Future. United Nations General Assembly, Report of the World Commission on Environment and Development, 1987. Available at: http://www.un-docu ments.net/ocf-a1.htm. Accessed: 02/08/2016. United Nations: Universal Declaration of Human Rights. 1948. Available at: https://www.un. org/en/udhrbook/pdf/udhr_booklet_en_web.pdf. Accessed: 27/07/20120.

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United Nations: Kyoto Protocol to The United Nations Framework Convention On Climate Change 1997. Available at: https://unfccc.int/resource/docs/convkp/kpeng.pdf. OXFAM: Extreme Carbon Inequality. Why the Paris climate deal must put the poorest, lowest emitting and most vulnerable people first. 2015. Available at: https://www.oxfam.org/sites/ www.oxfam.org/files/file_attachments/mb-extreme-carbon-inequality-021215-en.pdf. Widdows, Heather: Global Ethics, Durham U.K. 2011.

Is a cosmopolitan world society possible? A dialogue between Critical Theory and the English School By Nythamar de Oliveira and João Henrique Salles Jung

Introduction On an advanced globalization context, in which the historical constellation – until recently shaped by the primacy of nation-states as a political actor – is threatened, is it possible to think of a World Society? This is a finding based on the philosopher Jürgen Habermas (2001), exponent of Frankfurtian Critical Theory, in dialogue with the cosmopolitan tradition bequeathed by Immanuel Kant (1989) that today resonates with greater force in liberalism. The meaning of the term Konstellation, announced in the subtitle of the first volume of Habermas last work (2019), Die okzidentale Konstellation von Glauben und Wissen, refers us to the metaphorical set of historical-cultural references, as well as a grouping of stars in the firmament served to guide travelers or people who transited in antiquity. This Habermasian sense is deliberately weaker than the theoretical-critical sense elaborated by Benjamin and Adorno (literary and dialectic-linguistic) and closer to the historical sense developed by Dieter Henrich (1991), according to which a philosophical constellation is defined as a dense set of people, ideas, theories, problems or documents interacting with each other; in this case, only the analysis of this whole, and not that of its isolated components, makes it possible to understand the philosophical effects and philosophical future of these people, ideas and theories1. This programmatic sense of historical constellation, according to Habermasian post-metaphysical thought, challenges the teleological and necessitarian sense found within Hegelian philosophy of history: “History (Die Geschichte) means something different from the temporal dimension in which – like Kant – the norms of rational law are progressively developing and result in a cosmopolitan state of humanity (weltbürgerlichen Zustand der Menschheit). Instead, Hegel is the first to make clear what it means to identify traces of practical reason in history itself during the transition from the subjective to the objective spirit. Hegel initiates the detranscendentalization (Detranszendentalisierung) of the world-forming spontaneity of a mind, whose theoretical and practical activity is no longer attributed to an intelligent ego, but to a mind that also works through history in the form of finite intelligences of so1

De Oliveira (2020), p. 338.

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cialized subjects, that is, subjects rooted in historical contexts. From the perspective of the independence of the autonomously thinking and acting subject of the Enlightenment, history proves to be a resistant medium”2.

From the conjunctural analysis that he makes as a diagnosis of our time, Habermas analyzes the post-national constellation as a way of interpreting the political and social transformations of a transnational era3. In this aegis, the author proposes constitutional patriotism to replace national patriotism in the effective reality of transnationalization of law and identities4. Assuming the deterioration of the idea of nation as we know it today, one imagines a community of law in which individuals unite themselves by a series of moral values that are legitimate through communicative action. It should be noted that Habermas thinks the national state from the perspective provided by Benedict Anderson (1983), according to which a nation is, above all, an imagined community, built in different modes, often leaving the state to reach the nation, other times following the opposite path. The national state’s artificial and constructed character would act in favor of an extending solidarity beyond national borders, aiming at European solidarity in the European case5. Thus, the notion of a sovereignty based on individuals is constructed, as they come to recognize themselves as global citizens in what Habermas calls “World Society”6. Such an issue presents challenges since this project establishes a normative universalization thought through an exclusively European perspective on the reality designed, evident in ideas like “patriotism” and “constitution”, bequeathed from European law system. Globalization, according to Habermas, opens up a horizon in which global political and social decisions are based on the structures capable of accommodating their complexity: highly evolved administrative state mechanisms as dynamic and flexible markets operate much more efficiently by considering their populations as customers, exempting citizens from direct participation. The task of political philosophy consists precisely in diagnosing, confronting, and casting some explanatory light on such normative challenges, thus understood and not as an inevitable overwhelming destiny, resulting from the complexification of capitalism and its most recent neoliberal waves. The so-called English School (also known as the school of the International Society or of the British institutionalists) maintains that there is a “Society of States” at the international level, a global “social contract”7 despite systemic anarchy (i. e., the lack of a global ruler or a World State), as opposed to realistic and liberal models of International Relations8. It is a matter of comprehending how ideas, and not only ma2

Habermas (2019), p. 511. Translated by ourselves from the original in German. Habermas (2001). 4 Habermas (2001). 5 Habermas (2012). 6 Habermas (2001, 2012). 7 Watson (2004). 8 Buzan (2014), p. 170. 3

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terial capacities, shape the conduct of international politics as an object of analysis and theoretical criticism. In this sense, as with the normative reconstruction in Critical Theory, one of the major contributions of this current to International Relations9, the English School contributes through the concrete configuration of world history, international law and political theory, remaining open to normative and narrative approaches, as we find in Frankfurtian thinkers such as Habermas, Honneth, Forst and others. Thus, a rapprochement between Critical Theory and the English School is more than possible and desirable: it is indeed necessary. Although Habermas considers the multicultural reality and the plurality of forms of social interaction around the world10, this perception does not seem to effectively influence his diagnosis for the structuring of so-called post-national constellation. This ultimately refers to the disapprovals established by intellectuals of Critical Theory, particularly the feminists of the “fourth generation” (such as Seyla Benhabib, Nancy Fraser, Judith Butler, Amy Allen, Rahel Jaeggi, Catherine MacKinnon, among others) who denounce the lack of attention given by prior generations to issues related to colonial emancipation and the formation of cultural, gender and ethnic identities11. For Honneth (2003), the symbols of political recognition would not be enough to create a solid basis for transnational cooperation. From the contrast between Hobbesian realism and Kantian cosmopolitanism, the Honnethian theory of recognition seems promising to rescue a realistic conception of cosmopolitanism, not only because it assumes moral realism in intersubjective and societal relations, but also for rejecting a dogmatic reading of the normative challenges of a moral universalism, as it recognizes it in its first public approach to the theme in one of the conferences commemorating the bicentenary of the opuscule Zum ewigen Frieden held at the Johann Wolfgang Goethe-Universität in Frankfurt, in May 199512. Axel Honneth’s initial idea was to take Immanuel Kant’s Perpetual Peace (1989) against the model from Enzensberger (1994), while the generalization of a Realpolitik inside Hobbesian inspiration came from an article by Hans Joas (1994). The solutions to these problems did not stem from the omnipotent projection of Western nations, but from the historically irreversible process of moralizing international relations. With the collapse of Soviet communism and real socialism in 1989, a new world order could finally abandon the Hobbesian realistic model and flirt with Kantian cosmopolitan models, fostered by globalization that timidly began to become, in the 1990s, a defensible paradigm for the 21st century. According to Honneth (1997), this process may not have escaped Enzensberger (1994) so easily if he had directed his attention to other forms of human rights policy, but his aversion to moral 9

Linklater (2000). In contrast to Hoffman’s (1987) proposal, Linklater proposes that the Critical Theory of International Relations should be based on the Frankfurt School to act in three axes: i) normative, ii) sociological, and iii) praxeological. 10 Habermas (2001). 11 Benhabib (2006). 12 Honneth (1997).

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universalism is so strong that he limits his scope to prove his thesis of a dangerous societal burden in the case of humanitarian intervention. Honneth then evokes the recognition of human rights through soft power, assuming with Joseph Nye (1990) that the international failure to rescue threatened groups does not always try to prevent and sanction legal discrimination: there is no single line that deals with legal, diplomatic, and economic means to exert pressure for law enforcement. We need to follow the efforts to overcome rejectionist attitudes arising from experiences of collective humiliation in order to undermine historically reasoned demonizations, taking steps toward contractual agreements that ensure peaceful relations and long-term agreements on how to coordinate measures to address common challenges. A political theory that fails to gain conceptual access to these affective roots of transnational trust will also be unable to adequately conceive the normative conditions for the civilization of world politics. Thus, it is about time to recast International Relations in the light of new constellations – differing from Hegel’s philosophy of history and from the political realists who follow it. Therefore, we propose a trialogue between Habermas, Honneth, and the English School of International Relations aiming at the viability of a cosmopolitan International Society, an issue that permeates the debate between cultural plurality and moral solidarity. If solidarity refers to the imperative of defending values such as human rights in a universalist fashion – rescuing the Kantian notion of transcendental, moral principles – plurality protects particular differences and draws attention to the dangers of creating a moral imperative out of Western normativism. Although maintained in an Anglo-Saxon intellectual universe, the intersection between Habermas’s constitutional patriotism and Honneth’s intersubjective recognition with the English School’s debates will allow for new frameworks of a post-national reality in which principles as justice and human rights coexist in a scenario that respects the normative divides between peoples in ways of non-distinct moral valuations.

I. The post-national constellation: Habermas, International Relations and constitutional patriotism The Critical Theory of International Relations does not identify in the great exponents of the Frankfurt School its main authors, an issue that leads to the discussion about the relevance of Habermas and Honneth for this field of study. Habermas’s contribution to philosophy and social sciences is undeniable, but his participation in International Relations debates and theories is still considered controversial13. This fact results from the accusation that Habermas uses the same premises of the domestic context to reflect the international environment – usually within the rationality of communicative action. Certainly, Habermas evokes different meanings for the cos13

Diez/Steans (2005); Haacke (2005).

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mopolitan ideal, opposing to statist and nationalist elements in more extreme positions, in order to rescue the possibility of reconfiguring the formations of identities and transnational solidarity networks. Criticisms stem mainly from the philosopher’s ethical and normative concerns, which some scholars of International Relations, especially the Realist school, see as utopian. However, such criticisms of Habermas’s importance in International Relations are not supported, given the relevance that Critical Theory begins to have in the discipline from the “third debate”14, gaining even more prominence from the “fourth debate”15. Within this context, Jürgen Habermas’s influence on the very thinking of those who fostered such debates through Critical Theory is unquestionable. If internationalists like Robert Cox and Andrew Linklater – the latter also a supporter of the English School – are taken as the main critical theorists of International Relations, we cannot think that their thoughts are detached from the Frankfurtian origin of critical thinking. Habermas’s dialogue is supported by Linklater (2000, 1649), as Cox’s (1986) usage of hegemony concept shows. Critical Theory’s original method, explained in its genesis trough the classic text of Max Horkheimer (1972), is used as the cornerstone of this school in International Relations, in the process of questioning what has hitherto been constituted as theory and analyzing the relationships of interest behind such constructs; this sums up also the position of Mark Hoffman (1987) that Critical Theory serves as an effort of theoretical restructuration within International Relations. The famous words uttered by Robert Cox16 “theory is always for someone and for some purpose. All theories have a perspective. Perspectives derive from a position in time and space, specifically social and political time and space” attest to the Critical Theory of International Relations’ spirit and its correspondence with the Frankfurt School17. Furthermore, as disseminated from the Frankfurt School’s seminal work Dialektik der Aufklärung by Adorno and Horkheimer (1985), within International Relations this theoretical approach maintains as its core the denunciation of the ambiguities within the Enlightenment project. Therefore, emancipation is maintained as a central element of critical analysis18 and the major concern of different forms of hegemony made possible in the environment of international politics19. In the historical constellation splintering, composed by territorial state, the nation and an economy constituted within national borders with a somewhat convincing in14

Hoffman (1987); Lapid (1995). Diez/Steans (2005); There is no consensus on this nomenclature, because from the “third debate” there is a series of nomenclatures and interpretations to understand the theoretical evolution of the discipline. 16 Cox (2000), p. 1539. 17 Silva (2005). 18 Silva (2005). 19 Cox (2000). 15

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stitutional democratic process20, emerges the post-national constellation as a Habermasian attempt to configure ideas in the midst of an increasing transnationalization of contexts of reality. Putting globalization as the epicenter of his analysis, a phenomenon that the author treats more as a process than as a specific end21, the philosopher argues that the forms of political and social organization are substantially changing. Thus, the expansion and universalization of the technique leads the International Society to new processes of rationalization22, which lead to new problems of a transnational nature – such as ecology, radioactivity, and the financial market – and forms the post-national constellation. Such a context raises an imperative to think about how democracy can be maintained amid the increasing weakening of the nationstate and through the rise of financial markets. Hence, the core problem of Habermas’s work can be interpreted through the following passage23 : “I am not so interested in this work about the reasons for or against the continued dismantling of political union, but rather the solidity of reasons that both supporters and skeptics can put on the table and, more specifically, the reasons for and against the achievement of a postnational democracy”24.

Coherent with his embrace of a “radical democrat”, Habermas questions the directions of this growing porosity of the state’s borders rather than defends it. The product of the post-national constellation can only be defended if there is a democratic legitimacy in it25. In this way, one can see the Frankfurtian philosopher as a sober cosmopolitan, because despite sympathizing with a supranational project – and more than sympathizing, perceiving it as inevitable – he does not blindly defends it by taking the negative possibilities of such enterprise results in a strengthening of neoliberalism on a global scale. In this context, there is the author’s denial of the establishment of a global Federative Republic26, in which the current nation-states would act as federative entities within a global executive power. Instead, Habermas (2012) proposes a reverse model in which, from the institutionalization of new international organization, states can articulate – through global citizens – common laws. Thus, there would be a supranational legislature elected by citizens, a notion that meets the need for democratic legitimacy to the cosmopolitan project proposed by the philosopher27. It would be up to the states to carry out what was deliberated in this supra-

20

Habermas (2001), p. 78. Habermas (2001). 22 Habermas (2009). 23 Habermas (2001), p. 113. 24 Translated by ourselves from the Portuguese version. 25 Habermas (2001). 26 Habermas (2012), p. 95. 27 Habermas (2001, 2012).

21

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national instance, in addition to guaranteeing the freedoms of their citizens28, who would be both citizens of their states and of this new World Society. Such a World Society is the cornerstone of Habermas’s contribution to his cosmopolitan project, namely, the cleavage of a national patriotism towards a kind of constitutional patriotism. In this sense, cosmopolitanism must be rethought beyond the union between states, starting to encompass the role of the citizen as an active actor in the international political process: the distancing of the state from the concept of nation, as a community of origin, expands more and more29. One can point out here the main difference between the Habermasian proposal and others who, agreeing with the diagnosis of historical constellation’s ends, defend a project of global governance30. Governance, as stated in Rosenau and Czempiel (2000), is still centered on states as political actors, considering just the interaction between states and international organizations, excluding individuals as citizens of a cosmopolitan community that needs democratic legitimacy. In this context, Habermas (2012) makes an accurate critique of cosmopolitan projects that do not include individuals as legitimizing agents. It is extracted from the discourse of the Frankfurtian philosopher that every supranational project must take into account the action of global citizens, because on the contrary they become undemocratic undertakings: the decision-making sphere on a supranational level is even further from the ordinary citizen than in the national political process. The Habermasian proposal is only possible from an active position of the individual/citizen – which takes up the above-mentioned question that a post-national constellation can only be legitimate (and desirable) if it is effectively democratic. Thus, a World Society, organized through a supranational body that promotes a global legal order, can only be achieved through the transnationalization of national public spheres31. Through these public spheres, civic solidarity would be developed, in which individuals from different states feel themselves participants in the political process of other states, managing to establish a bond of solidarity between subjects of rights from different localities, creating a bond with them32. Thus, it is understood that political cosmopolitanism is preceded by an identity cosmopolitanism.

28

Ensuring the freedom of citizens is pointed out by Hegel (2005) as the ethical function (sittliche) of the state. 29 Habermas (2001). 30 Identified with the liberal view, the proposal for global governance emerges as a conjunctural analysis of the Cold War, observing the regimes established between the countries that led to cooperation even in the midst of conflict – in what realists like John Mearsheimer would call the “Balance of Terror”. Since the end of the Cold War, this proposal gains even greater momentum, bringing elements of transnationalization and state weakening in the face of global issues, thus advocating a governance between states to deal with this weakening. See Rosenau/Czempiel (2010). 31 Habermas (2012). 32 Habermas (2001).

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As Luiz Repa33 pointed out, the notion of constitutional patriotism must be able to replace nationalism as a source of solidarity because it is structured in such a way, with abstract principles, that it is difficult to see why it should be limited to national or European borders. On the contrary, constitutional patriotism joins a desubstancialization, with a proceduralization of popular sovereignty whose first result is exactly to take from the people the marks of an inclusion or exclusion of principles, remaining only the determination to be a member or not. In a nutshell, it is possible to draw some points in sequence for the foundation of the Habermasian proposal: (i) the diagnosis of the shattering of the historical constitution from globalization and the increasing transnationalization of political, social, economic and ecological phenomena; (ii) the logical need to create a cosmopolitan community capable of dealing with such phenomena, integrating states and citizens as active actors under the seal of a supranational organization capable of articulating these actors through a legislative and a judiciary; (iii) a greater commitment to the juridification of this community in the process of creating a normativity that is common to all global citizens, creating a “universalism sensitive to differences”; (iv) the solidification of a post-national democracy through the construction of a common political culture, which develops through communicative action in deliberative spaces of transnational public spheres; (v) the complete transformation of international politics into a global internal policy, civil society into a global society, and the international community into a cosmopolitan community.

II. Axel Honneth and the problem of recognition between states As Andrew Buchwalter34 rightly observes, Honneth (2003) does not oppose the notion of collective identity itself, whose usefulness is recognized by the Frankfurtian as a means of understanding the shared experience of minorities and other groups fighting for recognition in the face of social disrespect. However, Honneth states that this concept is not easily applicable to the nation-state, certainly those belonging to the constitutional states of the West, which are too amorphous to articulate a viable notion of identity and, in any case, are concerned with issues other than those associated with struggles against exclusion. Certainly, all debates about the problems and challenges for a cosmopolitan theory of global justice inevitably go through the problem of the rationale (in Kantian terms) or the normative justification of international relations and human rights, often resuming Hegel’s criticism of Kant’s formalism. If we cannot simply envision a solution of social engineering or jurisprudence of international relations through protocols, conventions, treaties and transnational 33 34

Repa (2013), p. 201. Buchwalter (2013), p. 24.

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documents between nation-states – as could propose a superficial reading of the concept of International Society within the English School – we do not want either to incur into a normativism, imposing dogmatically some normative conception, for example, of a categorical imperative to all parties concerned. If political realism, or the mere description of international relations and their legal arrangements, is incapable of providing a normative justification, the procedural-formal or deontological solution leads to the same sterile formalism that Hegel identified in the Kantian proposal to the extent that its effective reality (Wirklichkeit) is not ensured by its coherence and logical-semantic validity. Certainly, the problem of normativity in Hegelian philosophy and its implications for a reformulation of cosmopolitanism deserve a specific approach. An important contribution can be extracted from the recent thesis of Kevin Thompson (2019), according to which normativity is articulated from a metaphysics of freedom and law, that is, from a Hegelian science of law as the result, truth, and foundation of human freedom itself. This is precisely the core Habermasian and Honnethian approaches that deny such metaphysical-ontological commitments in their respective reconstructive theories of post-metaphysical thinking from Hegel’s critique of Kant. In his second seminal text dedicated to the theme of cosmopolitanism (Recognition between States), Honneth (2015) retrospectively revisits the philosophical itinerary of his original intuitions and thesis in his first elaboration of a theory of recognition35, confessing that the reason which leads him to “reconstruct Hegel’s theory of recognition was to gather ideas that would not only allow rethinking the concept of justice, but also lead to a better explanation of the relationship between socialization and individuation, between social reproduction and the formation of individual identity”36. This approach to the problem of recognition between states was presented for the first time, in German and English, at an international symposium on justice held in Porto Alegre, Brazil, in 200937. Although it doesn’t directly address the theme of global justice, this essay represents an instructive effort by Habermas’s successor to apply the tools of recognition theory to the general domain of international affairs. Still raising the suspicion directed at his predecessor about extending to the international scenario a domestic modus operandi, Axel Honneth’s particular objective in this essay is mainly to elaborate a distinct description of nation-state agency38 when compared to dominant International Relations approaches, avoiding both the universalization of identity policies and the particularization of nationalist and populist movements. Thus, Honneth39 questions the extent to which the concept of collective identity can be used to characterize and understand large-scale entities such as national states. Since it is not a question of completely rejecting the notion 35

Honneth (2003); Kampf an Anerkennung was originally published in 1992. Honneth (2012), vii. 37 De Oliveira et al. (2015). 38 About international players agency see Buzan and Little (2000). 39 Honneth (2012), p. 140. 36

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of collective identity, Honneth seeks to transcend the descriptive level of international political realism, for example, when a nation-state recognizes the self-determination, emancipation or independence of a people or nation. We can reexamine the diplomatic relations between nation-state and remember, through the work organized by Sombra Saraiva (2007), three paradigmatic examples that help us to situate the problem of recognition between states in descriptive and normative terms, avoiding, as the realists often warned, both the diplomatic motives and the underlying ideological preferences. Hence, on December 20, 1777, the Kingdom of Morocco became the first country in the world to recognize the independence of the United States, just a year and a half after the U.S. Declaration of Independence – the War of Independence fought by the 13 colonies of New England was still underway and the result far from successful, as it was only on February 6, 1778, that the first European country (and archrival of the Brits), France, recognized the USA as an independent nation. Certainly, the most important recognition would be that which came from the United Kingdom, which only occurred on September 3, 1783, with the signature of the Treaty of Paris, ending the American revolutionary process and recognizing the U.S. independence. A second example can be found in 1825, when the United Kingdom became the first country to recognize Brazil’s independence from Portugal, proclaimed in 1822. As in the first example, this second one shows economic interests allied to political and social interests: in the American case, the taxes paid to the metropolis that triggered the insurrection of the thirteen colonies; and in the Brazilian case, the abolition of the African slave trade. Both favored the new configurations of the British imperialist agenda, driven by the Industrial Revolution. A third example can be found in the creation of the Jewish state. Despite enormous pressure from many international community sectors and internal criticism from Zionist leaders, on May 14, 1948, David Ben-Gurion, recognized as the chief leader of 600,000 Jews at British Palestine, boldly declared Israel’s independence in Tel Aviv, immediately recognized as the State of Israel by President Harry Truman, despite the strong opposition from many U.S. Congressman, including his Secretary of State, George Marshall, and his Secretary of Defense, James Forrestal. Geopolitical conjuncture, encompassing military, security, and national sovereignty issues, as well as political-economic and diplomatic interests, underlies the processes of recognition among states, according to a world historical density that Honneth (2007) borrows from Hegelian philosophy, just as Habermas did. However, when employing the resources of recognition theory to deal with topics that permeate those about an international ethics, beyond problematic attempts at a Weltethos, Honneth still refrained from rescuing Hegel, whose thoughts were the starting point and central tenets of a Honnethian social and moral theory. In fact, Axel Honneth40 argues that Hegel’s thoughts hardly help us to formulate a theory of recognition among

40

Honneth (2012), p. 145.

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states, to the extent that he refuses to accept a connection between foreign policy and collective identity efforts within civilized states. Absorbing this thought directly from political realism, Honneth argues that Hegel understands the nation-state relations as not much more than exercises of strategic self-assertion. For Honneth, therefore, Hegel is not of great value for considerations about recognizable relations at the international level. Van Hooft41 believes that we can include the three levels of Honneth’s recognition (love, rights, achievement) in order to understand cosmopolitanism as the view that all human beings have at least one legitimate claim and expectation. In fact, the practical relationships with the self (Selbst) that crystallize themselves as self-confidence, self-respect and self-esteem, depend on relationships of mutual recognition in primary sociability (love), legal institutions and moral norms (law), and networks of solidarity and shared values (solidarity); such patterns of intersubjective recognition can be translated into cosmopolitan terms. Certainly, the most trivial understanding of cosmopolitanism focuses almost exclusively on the second level and sees individuals primarily as holders of rights, notably when the fundamental concept of human rights is inflated in discussions about global justice. A richer understanding can encompass the first and third levels. What a richer and deeper conception of cosmopolitanism can bring in to the discourse of global ethics is an expansion of scope and a deeper understanding of what global justice ultimately requires. Honneth’s attitude towards world history and Hegel’s philosophy of history, and its implications for a theory of recognition, as already mentioned, deserves an exclusive approach while it operates a break with the metaphysical assumptions of Hegelian philosophy.

III. About the international society: the English School between cultural plurality and moral solidarity One of the most consolidated theories of International Relations, the English School has its strength in the ability to mediate distinct views of the discipline, being considered by many as a “middle ground theory”. The anarchical society (1995), written in 1977 by Hedley Bull, is the cornerstone – though not the first – of this current of thought that, in an era marked by the theoretical debate between behaviorists and traditionalists, was used as a guide for the latter. By defending historical and philosophical methods in detriment of hard and natural sciences methods, as in behaviorists, the English School was the main theoretical current in what could be called the “second great debate” of International Relations. The initial contribu-

41

Van Hooft (2010), p. 46.

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tion, and one of the main made by the English School42, is related to the concept of order in international politics, which has in Hedley Bull (1995) its main formulator. Between the two theoretical currents consolidated until the rise of the English School, (i) realism was concerned in security issues and the respective competitive dynamics of international politics, resorting from principles such as human nature – found in the “first wave” of realists – to the security dilemma, always placing the state as the main (if not the only) actor within an anarchic international system; (ii) liberalism, in turn, advocated a greater institutionalization of international politics, aiming to create a cooperative sphere that could create mechanisms to prevent armed conflict between states through an interdependent international system. Both currents were the exponents of the “first great debate” of International Relations. As a middle ground theory, the English School retains elements of both traditions, creating theoretical possibilities, focusing its efforts on systemic issues about the possibility of changes in the international system through the “Evolution of the International Society”43. Adam Watson’s book (2004) deals specifically with systemic changes in relations between different political communities throughout history from this notion of International Society evolution. One should always take into account the idea that such a society, as well as other forms of similar forms of social organization, form systems of inclusion and exclusion44 that in recent centuries has been evidenced through the exclusion of non-Western countries with regard to the normative formulation of this very society. Still on the International Society, it is important to rescue the work of Martin Wight “International Theory: three traditions” (1991), in which he talks about three great theoretical traditions within International Relations, from which the currents we understand as theory of International Relations originate. The author relates a philosopher to each of the three traditions, thus quoting Thomas Hobbes, Hugo Grotius, and Immanuel Kant, who relate respectively to Realism, Rationalism, and Revolutionism45. In conceptual language, Hobbesian realism uses the notion of international system, while rationalism is that of international society and the revolutionary aspect of world society. This contribution is also known as “the three Rs” of International Relations. One can glimpse here a via media between Hobbesian political realism and Kantian utopian cosmopolitanism, in terms enshrined by John Rawls’s (1999) political liberalism and his “realistic utopia”. The relevance of Martin Wight (1991) contribution to International Relations is to enable structural reflection on this discipline, understanding the possibilities of change in the structure of international politics. This breaks with some static 42

Souza (2013). The English School is also known as the “School of International Society”, so it can be affirmed that the most important notion built in this theoretical tradition is precisely that of the existence of an International Society beyond an international system. 44 Bull/Watson (1984); Linklater (2000). 45 Wight (1991). 43

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views of International Relations, which essentialize such structure and conceive it as immutable, as is the case of Realism anarchic International System, well evidenced through Waltz’s structural realism (1979). In line with Watson’s work (2004), one can glimpse the possibility of a structural cleavage to the World Society through the interaction between international actors. The debate proposed here is about these structures, which conceiving an International Society where states as social actors share common values, customs and institutions – a central notion of Bull and Watson’s work (1984) – it is possible to reflect on the viability of a World Society. Is perceived a significant encounter with Habermasian notion of the World Society, in addition to the Kantian influence in both the German philosopher and the English School. The normative concern in the theoretical formulation of the English School46 is yet another point of connection with Habermas; however, there is a great distance between these two on a fundamental subject: cosmopolitanism. In this aspect, it is necessary to elucidate here two central concepts, which is one of the main keys of internal debates in English School: the one between pluralism and solidarity47. Despite being a relevant debate in major English School productions, it is in Hedley Bull (1966) that such a dichotomy appears initially. The processes of change in the international political structure and the respective greater interaction among actors from different localities leads to the confrontation of distinct political cultures, which can lead to problems such as conflict or the imposition of norms through an ethnocentric bias. There is the possibility of interpreting this contact from a pluralistic or solidaristic bias48. Within the English School, some authors are divided between those who defend a pluralistic bias and others who defend the solidarist as a way of thinking about the relations between international actors. In the end, it is perceived that this cleavage starts from different perceptions about ethics in International Relations. In this sense, from pluralistic approach Hedley Bull49 appears as the most influent thinker, followed by names as Robert Jackson and James Mayall50. The pluralist current is based on the central argument that it is not possible to have a global consensus on issues that refer to justice, which leads international actors – in this case with greater emphasis on the State’s figure – to acquiesce only in what means the reciprocal recognition of sovereignty and the respective illegitimacy of external intervention51. Thus, the ideal type of international organization is the International Society, 46

Souza (2013); Williams (2015). Valença (2009). 48 Williams (2005, 2015); Souza (2013). 49 Although Bull at the end of his career was directed to a more solidaristic conception according to Souza (2013). 50 Williams (2005). 51 Bull (1966). 47

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in which institutions are created aiming that States shares certain norms among themselves, while maintaining their sovereignty in the face of external impositions. It can be said that it is a more skeptical current, because it is content with an international order of coexistence, not envisioning the possibility of an extensive cooperation and symbiosis. The solidaristic bias, currently held while the mainstream within the English School, has in John Vincent, Nicholas Wheeler and Andrew Linklater their main names52. This current, in turn, has a stronger concept of human dignity, assuming that all individuals are carriers of fundamental rights that must be protected, encountering Habermas (2012) and his interlocutors. There is a Grotian rationality here in relation to the imposition of laws that are fair, which is evidenced also in Bull’s own work (1966). Thus, territoriality is more diffuse53 and international law has prevalence over domestic law when it defends that individuals are members of the International Society54, which already refers to the notion of World Society present in Martin Wight (1991). This debate can be summarized as follows: if from pluralistic bias, diversities are respected when thinking about the dangers (and unviability) of a universal normativity, in solidaristic the intention is to create a common ethics between different peoples. This discussion is also found in the debates around theories of justice, where Rainer Forst (2010) is an interesting intellectual to better understand this issue. Seeking this subject, the third and final section of this article will discuss precisely the dichotomy pluralism/solidarity in debate with Habermas cosmopolitanism and its respective notion of constitutional patriotism.

IV. Between Habermas and Honneth: The English School and the challenges around a universal normativity If it is in Kant (1989) that Habermas absorbs the guidelines of his cosmopolitan project (2001, 2012), it is with Hegel (2005) that he defends the legitimization forms of a supranational lifeworld. In the tension between system and lifeworld, while the two levels in which society is organized, Habermas (2015) summarizes the first as the material field and the second as the symbolic space in which communicative actions are carried out. Intersubjectivity, central to the study on mutual recognition since Hegel (2005), is a fundamental element to undertake the objective proposed here, that of understanding the challenges of universal normativity.

52

Williams (2005). Williams (2005). 54 Souza (2013). 53

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Thus, the English School discourses found in Hedley Bull’s pluralist bias in connected with the struggle for recognition found in Axel Honneth (2003), who inheriting the tradition of the Frankfurt School, and appearing as the great exponent of the third generation of the latter, criticizes his own great predecessor and advisor, Jürgen Habermas. Regarding Habermas’s (2015) formulation about how social actors are manifested in the intersubjective sphere – which concerns communicative action – Honneth (2003, 2007) argues that his advisor is quite naïve to presuppose understanding in lieu of conflict. The moral grammar of social conflict55 refers exactly to this perception. In this sense, the very foundations of Habermas’s cosmopolitan project (2001, 2012) are threatened, because despite having the same inspiration in Hegel (2005) as Honneth, the author supposes a rationality centered on a view of communication that generates understanding instead of conflict, which affects his entire conception about principles such as constitutional patriotism and the way in which individuals would supposedly come to perceive themselves in a transnationalized reality. An example of said situation is another notion worked by Habermas, that of civic solidarity. With an argument much more prone to solidarity if placed within the framework of the English School, Habermas56 talks about such civic solidarity in which “Swedes and Portuguese would be willing to answer for each other”57. Through this quote, two axes of criticism directed at Habermas can be conceived: (i) the naivety regarding his tendency to presuppose understanding instead of conflict; and even more critical, (ii) his project of a rationality based on European modernity, which leads to a series of criticisms from a post-colonial view. As stated at the beginning of this paper, Habermas (2001, 2012) demonstrates a concern with otherness, but his assumptions are still totally skewed by Eurocentrism, as is remarkable in the construction of his Theory of Communicative Action (2015), criticized in broader terms – and at the epistemological level – by authors such as Aníbal Quijano (1992) and Donna Haraway (1988). Closer to Honneth’s theoretical framework (2003), we argue that the International Society is permeated by a normative hegemony58 that is intended to be imposed among peoples in order to create a unique ethical community, based on Western values59. In this context, the conflict emerges when groups that do not recognize themselves in this normativity uses extreme actions to rebel themselves against the imposition of such normativity, as occurs in the case of terrorism60. As Barry Buzan (2014) stressed, there is no way to develop a theory of International Relations as an alternative to more extreme positions of classical and liberal models, or as a third way be55

Honneth (2003). Habermas (2001), p. 126. 57 Translated by ourselves from the Portuguese version. 58 Cox (1986). 59 Jung (2019). 60 Jung (2019). 56

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tween realists and constructivists, without distinguishing states from peoples and societies, to the extent that different conceptions of world order lies between plurality and solidarity between states, peoples and societies. This is quite evidenced within approaches as those of political-moral agency in philosophical theories of human rights: while jusnaturalists and realists postulate a human nature, and liberal political accounts postulate it as fundamental rights by virtue of their humanity, the so-called discursive or narrative accounts absorb a constructivism, but emphasize its social and linguistically co-constitutive reality. In his own words61: “The English School is about finding a working balance between how power and interest, as well as standards of justice and responsibility, operate in international society, how the ideal and the real meet up, and how the normative and the empirical are intertwined.” We perceived that the attempt to build a universal normativity can be dangerous, because conflict is more likely than understanding; communication has more different rationalities than the notion of European intersubjectivity can suppose. In these terms, it is interesting to think of the contributions by Enrique Dussel (2001), regarding the possibility of a cosmopolitan reality that, before it can be realized, must be transmodernized in order to transcend Eurocentric modernity. One can then bring together what Jung (2019) and Dussel (2001) point out, in an intertwined, theoretical framework anchored in Honneth (2003), to conceive the intersubjectivity that guides Habermasian communicative action through other lenses, beyond European rationality, still bearing in mind the conflict inherent in moral grammar of international relations – and not the consensus of ideal-speech situations. In this sense, John Williams’s (2005) defense of pluralism is useful as the best way to rethink a cosmopolitan project, rather than propose solidarity, that can often hide an authoritarian and ethnocentric aspect. Pluralism does not see on globalization the path to deterritorialize political relations, therefore presupposes no global solidarity needs, since internal issues to a State would be domestic concerns62. The Rawlsian idea of global justice can also contribute to an articulation between globalization and democratization without falling into the false dilemma of choosing between an anti-state cosmopolitanism and an anti-globalist nationalism or aversion to international relations63. In fact, both Rawls (1999) and Habermas deliberately sought to avoid the extreme positions that stem from Hegelian criticism of Kantian cosmopolitanism, either in the direction of a philosophy of history that culminates in a post-history or end of history64 or in the direction of a political realism that cannot contain the escalation of war conflicts and clash of civilizations65. According to Bull (1995), it is possible to establish order in an environment with diverse ethical communities, which can lead to the conclusion that, if communication 61

Buzan (2014), p. 86. Williams (2005). 63 De Oliveira (2003), p. 439. 64 Fukuyama (1992). 65 Huntington (1996). 62

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is necessary for order, diverse ethical communities can communicate. This joint dialogue, although in different normative positions, can then create a transnational project in the terms outlined by Enrique Dussel (2001), out of the margins of a legitimate political community that is then formed. Just as throughout history there have been a series of approximations and detachments in the International Society pendulum66, the formation of institutions and common practices through interaction, although through conflicts and distinct perspectives67, may transcend the International Society towards a new perspective. It is possible, finally, to think a World Society, a project present both in the English School68 as in Habermas (2001, 2012) as a form of transnationalization of citizenship, from a prism that does not impose a determined normativity. Thus, on the one hand, the transnational reality that is drawn in the international context, well perceived by Habermas (2001) and initially made possible by Bull (1995), is combined with a nonEurocentric proposal for this transnationalisation on the other hand. It would be the emergence of Kantian reformism69, but in a critical way. Furthermore, as Williams puts it in later work (2015), pluralism and solidarity should not be regarded as opposing projects, but rather, one should envision the possibility of thinking of a solidarity pluralism. The passage that expresses the benefits of the union between the two perspectives can be well formulated here70: “Developing a pluralist account predicated on the desirability of ethical diversity in the world holds out the potential for pluralism to follow the path of solidarism towards becoming a more fully developed normative theory of international relations. In parallel with solidarism’s commitment to ethical cosmopolitanism, usually via human rights, pluralism can offer an account of the ethical significance of diversity”.

Ethical diversity in International Society demands a plural vision that considers differences. At the same time, in the process of building a cosmopolitan project, this diversity must be seen from a solidarity bias. Finally, the solidarity pluralism proposed by Williams (2015) is intersected as the format in which the recognition itself is a way of perceiving the existence of a legitimate other, albeit with distinct normativity. Dialectical tension produces new syntheses from recognition71, syntheses that bring forth the different ones closer, even among conflicts. Self-determination through the other conceives distinct but interconnected ethical communities; conflicting, but which are recognized; separate but connected72. Thus, a cosmopolitan community is made possible, while far from being free of tensions, coexists through the will of social actors and adapts itself to a World Society design. 66

Watson (2004). Honneth (2003). 68 Bull (1995); Wight (1994); Watson (2004). 69 Wight (1994). 70 Williams (2015), p. 107. 71 Hegel (2005). 72 Honneth (2007). 67

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Conclusion Constitutional patriotism, a notion brought in by Habermas as a way of defending a transnationalization of laws and identities, emerges as a proposal to overcome the idea of nation as conceived today. Although very interesting, this proposal can also be interpreted as somewhat naïve, due to the belief in a consensus between different peoples through communicative and dangerous rationality, when the possibility of normative impositions between different ethical communities is envisaged. This was, moreover, Honneth’s greatest reservation, regarding the extension of collective identities (which serve to account for social movements and identity politics within a domestic context) to the scenario of international relations. Within this complex context that the normative challenges to the cosmopolitan project emerges; at the same time, it serves as a follow-up to the agenda proposed by Andrew Linklater (2000). Therefore, this is not to say that cosmopolitanism should be abandoned, but on the contrary, that this project needs to be rethought from more solid foundations, in order to be justified and legitimized. It can also be argued that, if reality is increasingly transnational, reflecting on ways to democratize and legitimize, this phenomenon is one of the main challenges of contemporary political philosophy and International Relations theory, especially Critical Theory. Indeed, even at the beginning of the socalled globalization, questionnaires about the political identity of the inhabitants of the Earth show that already 15 % stated that their main identity was regional/global, as over against 38 % who claimed to be national and 47 % who stated that their identity was local73. These numbers only tend to increase with the rapid proliferation of the Internet, new technologies, and the increasingly widespread use of social networks and digital mass media. For example, there are now more than 2.5 billion Facebook users in the planet. The same occurs with YouTube and WhatsApp (2 billion users each), Instagram (1 billion) and Twitter (300 million). This amounts to more than the number of adherents of the world’s major religions – Christians, Muslims, Hindus, and Buddhists74. Thus, a globalized democracy perspective can be understood today simply as a phenomenon that affects the internal regimes of various states but can also be taken as a new way of understanding and regulating global political relations. The central idea behind cosmopolitan democracy comes down to globalizing democracy while democratizing globalization75. Finally, we must think about the feasibility of a transnational reality, which is organized differently from the Westphalian system of states. The diagnosis of the present times is precisely carried out by Habermas (2001), when he conceives the postnational constellation, in which new forms of political and social organizations continue to emerge from the analysis of an unprecedented economic and cultural globalization. However, it is important to think about how to legitimize this new interna73

Marchetti (2004). Clement (2020). 75 Archibugi/Held (1995).

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tional order, especially when we criticize processes of hegemony and “cultural imperialism”, notably the Eurocentric ones associated with the pax americana. Therefore, both pluralism and solidarity have been dealt with throughout our paper, so as to propose a solidary pluralism, as it was originally conceived by Williams (2005), as an important ally of Honneth’s conception of struggles for recognition. We conclude with the promising perspective that a cosmopolitan reality will still be composed of conflicts, and yet conflicts themselves are inevitable and will serve to create institutions and practices that legitimize the political constellation of this new transnational horizon. This horizon is always dynamic and generative, in a phenomenological sense that opposes static and essentialized analyses, as has been brilliantly appropriated by Hartmut Rosa (2019) in his diagnosis of today’s social acceleration and in his prognosis of resonance as a contemporary solution to the related problems of alienation and reification. The challenge now would be to cultivate resonance spaces through post-national constellations such as the European Union, Mercosur, BRICS and – why not? – the transnational forums of the UN itself, as occurred with the WHO (World Health Organization) and related bodies in their difficult interactions and dialogues with several nation-states in the midst of the COVID-19 pandemic. We assume, therefore, that cosmopolitanism and post-national constellations do not eliminate relations and recognition between states but make them more susceptible to resonant crystallization. The existence of conflicts remains the greatest evidence that there is a democratic space between different social actors that position themselves and claim rights in a transnational political arena, besides being a true engine of the dialectic of recognition, producing new stellar configurations of historical processes. Finally, a World Society is both viable and desirable, directing the cosmopolitan ideal that develops from Kant towards an increasing and more concrete effectiveness.

References Adorno, Theodor/Horkheimer, Max: Dialética do Esclarecimento, Rio de Janeiro 1985. Anderson, Benedict: Imagined communities, London 1983. Archibugi, Daniele/Held, David (eds.): Cosmopolitan Democracy: An Agenda for a New World Order, Cambridge 1995. Ashley, Richard: The poverty of neorealism, in: Andrew Linklater, International Relations: Critical Concepts in Political Science, New York 2000, pp. 1572 – 1632. Beitz, Charles R.: Justice and International Relations, in: Philosophy & Public Affairs 4(4), 1975, 360 – 389. Benhabib, Seyla: Another Cosmopolitanism, Oxford 2006. Buchwalter, Andrew: Honneth, Hegel, and Global Justice, in: Tony Burns/Simon Thompson (eds.), Global Justice and the Politics of Recognition, New York 2013, pp. 23 – 47.

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Marchetti, Raffaele: Consequentialist Cosmopolitanism and Global Political Agency, in: John Eade/Darren O’Byrne (eds.), Global Ethics and Civil Society, Aldershot 2004. Miniuci, Geraldo: Ação comunicativa e Relações Internacionais, in: Novos estudos – CEBRAP 73, 2005, 76 – 87. Nye, Joseph: Soft Power, in: Foreign Policy 80, 1990, 153 – 171. Quijano, Aníbal: Colonialidad y Modernidad/Racionalidad, in: Perú Indigena 13 (29), 1991, 11 – 21. Rawls, John: The Law of Peoples, Cambridge 1999. Repa, Luiz: The Human Rights Between Morals and Politics: On Jürgen Habermas’s Cosmopolitanism, in: Nythamar de Oliveira/Marek Hrubec/Emil Sobottka (eds.), From Social to Cyber Justice. Critical Views on Justice, Law, and Ethics, Praha 2018, pp. 191 – 210. Rosa, Hartmut: Aceleração. Uma análise sociológica do tempo na Modernidade, São Paulo 2019. Rosenau, James/Ernst-Otto Czempiel (eds.): Governança sem governo, Brasília 2000. Saraiva, José Flávio Sombra et al.: História das Relações Internacionais Contemporâneas, São Paulo 2007. Silva, Marco Antonio: Teoria Crítica em Relações Internacionais, in: Contexto Internacional 27 (2), 2005, 249 – 282. Souza, Emerson Maione de: A Escola Inglesa de Relações Internacionais e o Direito Internacional, in: Mural Internacional 4 (1), 2013, 38 – 47. Thompson, Kevin: Hegel’s Theory of Normativity. The Systematic Foundations of the Philosophical Science of Right, Evanston 2019. Valença, Marcelo Mello: Política, Emancipação e Humanitarismo: Uma Leitura Crítica da Escola Inglesa sobre a Questão da Intervenção Humanitária, in: Contexto Internacional, 21 (2), 2009, 319 – 315. Van Hooft, Stan/Vandekerckhove, Wim (eds.): Questioning Cosmopolitanism, Heidelberg 2010. Watson, Adam: A evolução da Sociedade Internacional, Brasília 2004. Wight, Martin: International Theory: the three traditions, Leicester 1991. Wight, Martin: De systematibus civitatum, in: Andrew Linklater, International Relations: Critical Concepts in Political Science, New York 2000, pp. 1253 – 1273. Williams, John: Pluralism, Solidarism and the Emergence of World Society in English School Theory, in: International Relations 19 (1), 2005, 19 – 38. Williams, John: Pluralism, The English School and The Challenge of Normative Theory, in: Robert Murray (ed.), System, Society and the World: Exploring the English School of International Relations, Bristol 2015.

Is there an objective standard of salience for International Law? By Thomas Bustamante1

Introduction In Dworkin’s posthumouswork on the philosophy of international law, he proposes to integrate the requirements of state legitimacy and the legitimacy of international law. Legitimacy of international law, on this argument, can be vindicated through two distinct principles: the principle of mitigation, which requires states to limit their own sovereignty by adhering to an international legal order founded on principles that increase their own legitimacy, and the principle of salience, which, under certain conditions, fixes a duty to attach to salient norms in the international legal order, provided that there is a general practice of endorsing these norms and that acknowledgment of these norms increases both the legitimacy of international law and the legitimacy of the states’ government. For the principle of mitigation to hold, the principle of salience must do the practical work. In this short essay, I inquire whether the principle of salience can be objectively justified. I ask if there is a standard of salience sufficiently impersonal to satisfy the demand of legitimacy imposed by the principle of mitigation. After expounding the reasons for accepting Dworkin’s monism in international law, I explain the conditions for making the principle of salience a viable principle for interpreting and developing international law.

I. Kelsenian and Dworkinian arguments for monism in International Law The dominant tradition of jurisprudence treats international law and municipal legal systems as independent domains, with their own rules of recognition and 1

The research that led to the production of this essay was undertaken under the auspices of a Global Research Fellowship at New York University (NYU), during the academic year of 2020 – 2021, at the Center for Law and Philosophy. I thank Profs. Liam Murphy and Jeremy Waldron, for admitting me to the Center, and Joseph Weiler and Graïnne de Burca, for holding the fellowship program and constructively engaging with the fellows’ works.

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their own principles of legitimacy. One the one hand, legal validity in each domain is established through shared criteria internalized in the practice of officials, which vary among institutions in the realm of international law and in each state2. On the other hand, domestic legitimacy is regarded as indifferent to the duties of states in the international legal arena and contributes little to the satisfaction of a state’s obligations toward other states or international institutions. Even the philosophers who defend a “fair association model” to establish the legitimacy of international institutions3 tend to accept the thesis that I once described as the “indifference assumption”, which holds that “political authority (of states) is a purely domestic business, so that a state can be legitimate even if it has no concern for the people who are not subject to its political authority”4. Dualism about the relationship between state law and international law has farreaching consequences. As I pointed in the opening paragraph, it refers not only to the validity conditions of the norms of these systems, but also to the legitimacy requirements each system is supposed to satisfy. International law is conceived of as justified by an independent list of “morally mandatory aims” like the preservation of peace and international security, the protection of persons against violation of human rights, the duty to avoid global environmental catastrophe, the duty to alleviate extreme poverty, and the duty to establish a fair system of trade5. A case can be made, however, that the model of two independent systems is too crude. It generates paradoxes like the idea that there is no such a thing as international law6, or, less radically but equally problematically, the thought that a state (or a person) can be authorized to do it under a system while prohibited do to it under the other. It allows for the possibility that it becomes impossible, in certain cases, to satisfy an obligation from international law without infringing another obligation established in domestic law. Once we look at the connection between law and practical reason, the dualistic image comes at a price. As Kelsen explained in his seminal defense of monism in international law, “all law is regulation of human behavior”, so it makes little sense to claim that a law binds states without binding individuals therein: “if … international law should not obligate and authorize individuals, the obligations and rights stipulated by international law would have no contents at all and international law would not obligate or authorize anybody to do anything”7. Even if we conceive of a state as a “legal person”, i. e. as a subject of rights and duties under a system of legal 2 For the attempt to unveil the rule of recognition of international law, despite H.L.A. Hart’s description of international law as a primitive legal system, see: Besson (2010), p. 163, and Waldron (2013), p. 378. 3 See Christiano (2010), p. 119. 4 Bustamante (2017), p. 268. 5 See Christiano (2012), pp. 380 – 388. 6 John Austin, for instance, famously characterized international law as “improperly” termed law, or a form of “positive morality” or law “by close analogy”, for it is a set of rules “enforced by mere opinion”. See Austin (1995), p. 20. 7 Kelsen (1949), p. 343.

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norms, it still confers rights and duties to the “natural” persons affiliated to this state, in and indirect way. The state, acting in the international order, “is in fact simply a juristic person”, the action of which “is manifested solely in actions of human beings considered as its organs”8. When international law “obligates and authorizes states”, this “does not mean that it does not obligate and authorize human individuals; it means that international law obligates and authorizes those human individuals who are states organs”9. International law obligates states by imposing obligations on officials who, in turn, hold a myriad of further obligations under the terms of domestic laws. Dualist theories cannot successfully establish, therefore, the premise that international law creates obligations only to officials, because these officials also have legal duties towards their own citizens. As official, one must have obligations established by the internal legal order to which she belongs, and which empowers her to be an official in the first place. The only way to avoid irresolvable practical conflicts – i. e. conflicts that inevitably lead to illegality and breach to the rule of law – is to provide an account that integrates international and internal norms in a single system, the unity of which is presupposed for the rationality and normative force of the law. If international law and municipal legal systems can be interpreted as independent and unrelated systems which are likely to conflict in several times, it becomes impossible for both to concurrently satisfy the efficacy condition, i. e. the requirement to be binding and effective in practice in order to hold the status of law. Although Kelsen’s search for the unity of law may be thought to create some problems of fit within his own theory of law, it is based on a serious concern for the normativity of law. It rightly points to a doctrinal problem, which refers to the use of a concept of law that committed participants of a legal order should employ when they purport to describe the obligations their officials are entitled to impose and the rights that those subject to the domain of law are entitled to claim against one another. It is this doctrinal problem that motivated Dworkin to join Kelsen in his advocacy for a monistic conception of legal system, i. e. to regard international norms and domestic provisions as forming a single system. In a posthumous article published as “A New Philosophy of International Law”, Dworkin suggests that the legitimacy of municipal legal systems and international law are internally interrelated10. There are two important ideas in Dworkin’s argument. First, Dworkin believes that law and morality are not different parts of practical reason; they constitute, instead, a single practical domain. Morality in general constitutes a realm of value, and can be divided into the domains of ethics, which refers to the responsibilities we have to ourselves, personal morality, which refers to the interpersonal duties we owe to strangers, like the duty not to inflict harm on others or to aid and rescue them 8

Kelsen (1949), p. 343. Kelsen (1949), pp. 342 – 343. 10 Dworkin (2013) pp. 2 – 30. 9

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under the appropriate circumstances, and political morality, which concerns the rights and duties we hold toward others in virtue of our belonging to a political community, membership of which is attached to associative obligations that create duties of equal concern and respect among its members11. Law is a domain within political morality. Political rights and legal rights are owed to the members of a community in virtue of membership, and they hold both among individuals and between individuals and their government. The difference between political rights and legal rights is that the latter are also legitimately enforceable by political institutions. On Dworkin’s view, only what can be appropriately enforced by a political institution with adjudicatory powers can count as law12. The second idea, in turn, requires one not only to regard law and morality as one single system, but also an integration of state law and international law. At the center of Dworkin’s argument is a rejection of the “indifference assumption”, which considers the legitimacy of international law and municipal legal systems as separate matters. There are no principles or abstract aims of international law which can be vindicated with independence from the legitimacy requirements states must satisfy when they purport to exercise political authority over their subjects. To vindicate this second idea, Dworkin appeals to the first, and that is why his monism is different from Kelsen’s. Unlike Dworkin, Kelsen adopts a general skepticism about the possibility of objectivity in the realm of morality, which leads him to defend a political relativism that is presented as the only escape route from the perils of philosophical absolutism. Kelsen argues that natural law theories, for instance, are undemocratic and that there are non-accidental connections between “philosophical absolutism” and “political absolutism”. Aquinas’s Summa Theologica and Dante Alighieri’s De Monarchia are, for him, classical examples of the coincidence of philosophical and political absolutism. In a democracy, for Kelsen, there should be no room either for “political absolutism” or, as a consequence, for “philosophical absolutism”13. We would be left with the simple alternative of choosing between moral metaphysics and philosophical relativism. Kelsen’s solution to this problem is to postulate a radical separation between law and morality. While morality lacks an objective criterion to establish the validity of 11

Dworkin (1986), esp. chap. 6. It would be a mistake to hold, like some interpreters of Dworkin suggested, that Dworkin changed his mind in his late work “Justice for Hedgehogs” about the idea that law is developed through enactments and commitments of political institutions. Law exists, for Dworkin, even in his later work, when a moral obligation emerges from the action of political institutions. The political pronouncements of these institutions shape a part of our moral world, for they make it appropriate for officials to coercively enforce certain rights and duties. We grant the status of law to rights and duties we can legitimately enforce through official application of coercion. See Bustamante (2019). 13 Kelsen (1948), p. 906. Kelsen considers any ambitious metaphysical moral theory a form of philosophical absolutism. It is not the point of this essay, however, to determine whether he is right about this. 12

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its norms, law is successful in this task. For every norm, Kelsen thinks that one can identify an act of will that posits this norm, i. e. which establishes its objective validity. Norms for Kelsen are the product of an act of will that creates a certain norm by applying a previous and hierarchically superior norm, which empowers the author of the enactment to introduce the new norm in the system of previously existing ones14. It is this skepticism about the objectivity of morality that makes Kelsen’s monism hard to be sustained, even in light of the assumptions of his own theory. For Kelsen’s doctrine of international law to hold, there must be a single legal system in the whole world, with one basic norm establishing the principle pacta sunt servanda as the normative basis of international law. But despite the ingenuity and sophistication of Kelsen’s general theory of law, it leads to some important problems. To name a couple, it seems difficult (i) to reconcile this idea with the thought that each state must have its own basic norm (which provides the ground for the positive norms contained in its political constitution), and (ii) to claim that the justification of the principle “pacta sunt servanda” can be justified in morally neutral terms, as Kelsen’s principle of the purity of legal theory would require. Dworkin’s theory can avoid these difficulties. It adopts a different route to vindicate an integrative reading of international law and municipal legal systems. He claims to retain a monistic account of legality, which avoids a gap between domestic law and international law, by also rejecting the gap between law and morality. Law is made of materials that stem from past political decisions of institutions, but the right way to interpret these political materials is through moral judgments of the interpreter. There are two important aspects of this idea: first, we can call “law” only the content of moral obligations that we hold in virtue of the past political decisions of institutions; second, the significance of these decisions is in part a moral matter, which will be determined through interpretive reasoning. I believe that this is the core of Dworkin’s assumption that there is only “one-system”. Dworkin’s commitment to the one-system view requires him to postulate not only the negation of the indifference assumption, or to positively sustain the thesis that there is just one legal system. It requires also, and perhaps more fundamentally, the further assumption that law and morality form a single domain. Dworkin understands the realm of value – that includes law, politics and morality – in the form of a “tree structure”, which goes as follows: “law is a branch of political morality, which is itself a branch of a more general personal morality, which is in turn a branch of a yet more general theory of what is to live well”15. For Dworkin, therefore, there is no gap between legal theory and political philosophy. In fact, the former is regarded as a department of the latter. Legal theory is the part of political philosophy concerned with the moral obligations we hold because of 14

Natural law theories cannot be accepted, for Kelsen, because this voluntaristic approach would lead one to commit to the existing of a God, or a supra-human power to posit this natural law at a given time. See Kelsen (1949), p. 392. 15 Dworkin (2011), p. 5.

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the action of political institutions. The right way to establish the content and the force of a legal proposition is not by looking to a metaphysical determinant, but rather to make a moral judgment. Although it is true that social facts can create new legal obligations, they do not create them by fiat or by chance. We do not look at these facts as plain facts but rather through interpretive eyes. Social and political facts create legal obligations only indirectly, because the content of the law cannot be known or intelligible without further moral judgment. Dworkin believes that a theory of the grounds of law – i. e. the ultimate determinants of legal validity – must be integrated into a theory of the force of law – i. e. the moral stringency of the law or its capacity to generate obligations for those under its domain. To construct separate accounts about the grounds and the force of law is not only unsensible, but also an invitation to commit a series of performative contradictions. It leads philosophers to elaborate theories that participants of the practice cannot accept, because these theories contradict implicit commitments of the practice they participate. It makes little sense, for instance, to say that NATO’s invasion on Kosovo, to stop an ongoing genocide despite the lack of authorization from the UN’s Security Council, was an act of “civil disobedience”, like prominent supporters of legal positivism did16. This interpretation, for Dworkin, is a “dangerous description of the matter”, which may well undermine the political legitimacy of international law17. A better account of legality would have to provide a concept of law that makes sense for the participants of the practice, when they use it to submit an argument to the effect that something is legally required or authorized in a given case. A theory of law must be a political theory because a theory of the “grounds” of law is not a metaphysical theory, as it were, but is instead a theory of what we have an obligation to do. To put it in the language that Dworkin employed in Law’s Empire, “legal argument takes place on a plateau of rough consensus that if law exists it provides a justification for the use of collective power against individual citizens or groups”18. Dworkin believes, thus, that a theory of political legitimacy of states must comprise a sub-theory of the legitimacy of international law. The legitimacy of states depends on their attitude toward international law. The question of the legitimacy of international law arises not only within the context of international disputes or arguments among the actors in the practice of international law, but also, and perhaps fundamentally, inside the states. Questions about the legitimacy of international law are questions to be answered in internal interpretations, because international law forms part of the set of norms and commitments states must apply in the relations they hold with their own citizens. The content of international law is internally binding, since commitment to international law is part of the associative obligations a government has toward the members of the political community. Any state enforces the norms of 16

Franck (1999), pp. 857 – 860. Dworkin (2013), p. 23. 18 Dworkin (1986), p. 108.

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international law in its relations with persons under its domain, and the best way to account for its legitimacy is to provide a unitary conception of political legitimacy. Dworkin proposes, thus, a general principle for the legitimacy of international law, which requires states to mitigate their sovereignty. In earlier work, I described this principle in the following way: “The core intuition of Dworkin’s answer is that the legitimacy question about what justifies coercive political power arises not just ‘within each of sovereign states’, but also ‘about the system [of international law] itself.’ The problem of legitimacy arises, thus, also when each state decides to respect the principles of international law. In Dworkin’s words, ‘those principles are not independent of but are actually part of the coercive system each of those states imposes on its citizens.’ It follows from this a duty of each state to mitigate the effects of the notion of sovereignty by imposing ‘constraints on its own power’ and abandoning the Westphalian model of sovereignty that still prevails in international law. The first step to develop a new philosophy of international law would be to accept that the states’ duty to improve their own political legitimacy includes ‘an obligation of each state to improve the overall system’ of international institutions. This requirement, which Dworkin calls the principle of ‘mitigation’, provides the ‘true moral basis of international law’”19.

The principle of mitigation attempts to provide a constraint on the power of states, which defines a limit to the authority they can legitimately exert upon its citizens and a limit with regards to what they can do as members of the international association of states that constitutes the realm of international law. But this principle is still too vague. It requires a “structuring principle” to make this duty more concrete and intelligible, which Dworkin described as the salience principle. Here’s a canonical formulation of this principle, which provides a test to determine the legitimacy of the attitude of states with regards to international law: “If a significant number of states, encompassing a significant population, has developed an agreed code of practice, either by treaty or by other form of coordination, then other states have at least a prima facie duty to subscribe to that practice as well, with the important proviso that this duty holds only if a more general practice to that effect, expanded in that way, would improve the legitimacy of the subscribing state and the international order as a whole”20.

Can this principle provide a reasonable account of the obligation of states under the domain of international law? Can it enable one to make an objective judgment about the content of one’s obligations under international law? I attempt to respond this questions, first, by providing an account of the objectivity in legal argument, and, second, an interpretation of three elements of the notion of salience in legal reasoning: i) the commitments of the “general practice” of international law (Dworkin’s first proviso to the principle of salience); ii) the “associative” theory of legitimacy required to justify the legitimacy of international norms (Dworkin’s second proviso); 19 Bustamante (2017), p. 262. All the quotes inside the quote are from Dworkin (2013), pp. 16 – 17. 20 Dworkin (2013), p. 19.

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and iii) the reasoning processes required to achieve salient principles of international law (which complements this account of salience and provides the discursive framework for argument in international legal practice).

II. In search of a concept of objectivity fit for law My aim in this article is to investigate whether Dworkin’s principle of salience can provide a structuring principle to successfully determine what qualifies as a binding and objective interpretation of law. We must determine, therefore, a conception of objectivity that is capable to perform this task. In order to establish a sense of objectivity appropriate for domains like law and morality, Marmor distinguishes between “metaphysical” objectivity, which requires a “truth of the matter consisting in the fact that there is an object with properties corresponding to its description”21, and “logical” objectivity, which is satisfied with the possibility of ascribing truth values to the statements of a class22. The difference between the metaphysical and the logical concept of objectivity is that only the former is committed to a correspondence theory of truth and a reductive description of “an object in the world”23. Logical objectivity, in turn, is compatible with a pluralistic conception of truth or with philosophical traditions that “allow for the validity or truth of statements which are not descriptive (or reducible to descriptive) statements”24. The point of distinguishing between a metaphysical and a logical sense of objectivity is to dissociate objectivism from moral realism. Once the logical concept of objectivity is available, it becomes possible to insist on the objectivity of moral assertions even if one accepts an anti-realist metaethical theory. Projectivism, constructivism, fictionalism, expressivism, and perhaps other metaethical isms become suitable candidates for delivering objective moral statements. Nevertheless, despite its analytical consistency, the concept of logical objectivity is still unsatisfactory to satisfy the requirement of legitimacy that motivates lawyers to insist on the objectivity of their moral judgments. When lawyers argue for the objectivity of morality, they are looking for more than the logical concept of objectivity and less than its metaphysical sense. Consider, for instance, the following excerpt from Dworkin: “I see no point in trying to find some general argument that moral or political or legal or aesthetic or interpretive judgments are objective. Those who ask for an argument of that sort want something different from the kind of arguments I and they would make for par21

Marmor (1995), pp. 177 – 201, at 181. Marmor (1995), p. 178, pp. 186 – 187. 23 Marmor (1995), p. 185. 24 Marmor (1995), p. 186.

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ticular examples or instances of such judgments. But I do not see how there could be any such different arguments. I have no argument for the objectivity of moral arguments except moral arguments, no arguments for the objectivity of interpretive judgments except interpretive arguments, and so forth”25.

It is evident that Dworkin rejects the reductive explanations that would be required by the metaphysical concept of objectivity. But in his view the logical concept is in no better shape, for he thinks that we still need more than an ad hoc concept of objectivity whose point is to rescue some metaethical theories from their sceptical practical consequences. Instead of a stipulative concept to make sense of ordinary moral statements while maintaining the second-order assertion that there are no “real” moral truths or that what seems to be a moral truth is actually something else, Dworkin is postulating, like the majority of lawyers, a methodological concept of objectivity. This methodological objectivity, to repeat, is not grounded in any metaphysical view. A true metaphysical argument about morality would have to be an Archimedean argument. It would have to be both austere, in the sense that “it does not rely even on very general or counterfactual or theoretical positive moral judgments”, and neutral, in the sense that “it takes no sides in substantive moral controversies”26. But Dworkin is convinced that no metaethical argument possesses these features. He comes to the controversial conclusion that metaethics is based on a mistake, because we can neither find moral properties in the universe, which are supposed to make a causal impact on human beings, nor give up our entrenched convictions about the existence of moral norms. It would be unintelligible, for instance, to claim that we all err about the nature of our moral judgments or that we are confused about the status of our moral claims27. Since nearly all sceptical metaethical positions, according to Dworkin, can be broadly classified as either a form of “error theory”28 or a variant of “status scepticism”,29 which claims that when properly analysed (from a second-order or metaphysical point of view) the moral facts to which we appeal in our ordinary arguments are actually the projection of emotions, or attitudes, or feelings, or desires, or something else, he claims that they are all unintelligible and implausible. The reason for this unintelligibility stems from a similar source: they are all trying to find a causal explanation for moral facts, i. e. they are trying to reduce moral facts to some prior fact which determines its status, and if they find out that no such causal explanation is available and no such prior facts exist, they are driven to external scepticism because of their flawed methodological ambitions. Moral values, on Dworkin’s view, cannot be either affirmed or denied with these metaphysical theories, since they all fail to understand that values and moral norms belong to a metaphysically independent domain. 25

Dworkin (1985), p. 171. Dworkin (1996), p. 92. 27 Dworkin (1996), p. 92. 28 Dworkin (2011), pp. 46 – 49. 29 Dworkin (2011), pp. 50 – 66. 26

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The core of Dworkin’s argument lies on Hume’s distinction between facts and values, but unlike the Humean trend in metaethical inquiry he does not infer from this that moral truths do not exist. They do not exist as part of the causal world, in which the laws of science apply. But there is nothing that should prevent us from believing that they exist in an independent domain. If this is the case, then “the truth of any true moral judgment consists in the truth of an indefinite number of other moral judgments. And its truth provides part of what constitutes the truth of any those others”30. We must apply, therefore, an integrated moral epistemology, which is all we need to gain access to values and moral truths. On Dworkin’s holistic account of values, “all true values form an interlocking network”, in which “each of our convictions about what is good or right or beautiful plays some role in supporting each of our other convictions in each of those domains of value”31. But right after proposing this test for our interpretive convictions about values, he adds that he means with this “to describe method, not metaphysics”, i. e. he means to explain “how you must proceed if truth is your agenda”32. The relevant notion of objectivity in the lawyer’s account of morality must therefore be both “moderate” and “domain-specific”. It must reject metaphysical objectivism: “the case for a methodological approach to objectivity” does not depend on any metaphysical thesis; “it depends, rather, on the domain-specific nature of the notion of objectivity”, which is “precisely what partisans of metaphysical objectivity reject”33. When lawyers argue for the objectivity of moral judgments, they either claim that metaphysical descriptions of morality are self-contradictory34 or they hold that they are “orthogonal to the central questions of the objectivity of the discourse”35 and can only work if they provide “illuminating summaries of central aspects of our practices”, which are “accountable to our practices, rather than our practices being accountable to them”36. Metaphysical descriptions of the “true nature“ of morality are at worse impossible37 and at best subsidiary38 or irrelevant39 for the practice of moral interpretation. The methodological concept of objectivity required for justifying moral arguments presupposes the possibility of “epistemic objectivity”, i. e. of the claim that people can be objective about certain features “if they are, in forming or holding opin30

Dworkin (2011), p. 117. Dworkin (2011), p. 120. 32 Dworkin (2011), p. 121. 33 Postema (2001), p. 133. 34 Dworkin (2011) and Dworkin (1996). 35 Postema (2001), p. 129. 36 Raz (2009), pp. 227 – 228. 37 Dworkin (2011) and Dworkin (1996). 38 Postema (2001); Raz (2009). 39 Waldron (1999), pp. 164 – 187. 31

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ions, judgments, and the like, about [certain] matters, properly sensitive to factors which are epistemically relevant to the truth or correctness of their opinions or judgments”40. But there is more. It requires, in addition, a type of “domain objectivity”, which recognizes not only “certain structuring features” common to different domains41, but also some special responsibilities in the inquiry inside its own domain42. Consider, for instance, Raz’s account of domain objectivity. A domain is objective if it satisfies “a whole range of criteria” which “define the discipline to which objective thoughts are subject”43. Although Raz does not provide an exhaustive list of these criteria, he gives us some important assumptions: the possibility of knowledge condition, which means that “only if a domain is objective can it express knowledge, or be said to be about something that one can have knowledge of”; the possibility of error condition, which requires that it remains possible to think that things are of a certain type without that being the case; the possibility of epistemic objectivity, which implies a “capacity to avoid bias, or other emotional distortions”; the relevance condition, which requires that a domain contains “facts or other considerations which are reasons for believing that they are or are likely to be true or correct”; the independence condition, which requires a “reality which exists independently of our knowledge”; and the single reality condition, which means that a domain of thought only can be objective if submitted to the constraint that “thoughts constitute knowledge only if they all can be explained as being about a single reality”44. Among the conditions of objectivity stated above, the relevance condition occupies a prominent position. Depending on the domain of thought the “reasons for holding a thought to be true or false are of a large variety of kinds”45. It is the set of features of the domain which accounts for the appropriateness of the reasons in such domain. The objectivity of a domain need not presuppose “either a priori or self-evident or incorrigible understanding” of the reasons which are relevant in the domain. It is satisfied, instead, with the assumption that the thoughts which belong to this domain “allow for the application of judgments based on reasons” and “that there can be reasons of an appropriate kind”46. Although one might object that some of Raz’s criteria are metaphysical, which would allow one to hold that he is implicitly committed to the metaphysical concept of objectivity, there is still a sense in which they are all internal to the domain to which they apply (Raz 1999, 131). Raz believes that the attempt to classify objectivity criteria as semantic, metaphysical or epistemic concepts misses the important point that these criteria are “interdependent, and that at the most fundamental level these stipu40

Raz (1999), p. 119. Postema (2001), p. 105. 42 Raz (1999), pp. 122 – 123, and Postema (2001), pp. 105 – 107. 43 Raz (1999), p. 123. 44 Raz (1999), pp. 123 – 126. 45 Raz (1999), p. 124. 46 Raz (1999), p. 125.

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lated concepts are not useful”47. The important point is that to establish the objectivity of a moral or legal judgment we need to make it an intelligible and acceptable norm, and this intelligibility requires: (1) “appropriate experience, or learning from (or about) those who have experience”; (2) explanation of the point of a rule or a value, which need not be a point external to itself; and, (3) a network of mutually supporting moral propositions48. I will attempt to show in the next section that Dworkin’s principle of salience can satisfy this test, in all of these three dimensions.

III. Pursuing salience in International Law The three criteria of objectivity for normative judgments stated at the end of the previous section provide a standard for us to judge whether Dworkin’s principle of salience succeeds as a structuring principle for international law. The three requirements of the idea of objectivity are connected to the three elements that compose the conception of the principle of salience in international law that I offer here. As I mentioned in sect. 2, the structuring principle of salience comprises three elements or dimensions. The first element is the existence of a general practice of accepting the principles of mitigation and salience, which provides the condition for appropriate experience of the participants. The second element is the idea of associative obligations and equal consideration among states, which stems from the values of equality and publicity in international law and provide the point and value of salience in international law. Finally, the reasoning process for achieving salience is a process of constructing the network of mutually supporting norms that are presupposed for achieving the objectivity of norms in the international domain.

1. The idea of International Law as a normative social practice Dworkin’s principle of salience is subjected to an important proviso, with two demands. The first demand will be discussed in this section. There must be a general practice of committing to the norms and principles of international law. International law must be conceived of as a rational social practice, made of norms sustained through implicit commitments of its participants. Since I have discussed this requirement in more length in other works, I will deal with it only briefly here. Nevertheless, at least a sketch of this requirement must be made. Participants in the practice must be treated as rational agents who commit to these norms by undertaking responsibility to abide by them. They must regard the political practice in which they participate as a rational practice, the sense of which is provided by implicit norms that define the proprieties of the practice, i. e. the conditions of 47 48

Raz (1999), p. 130. Raz (1999), p. 174.

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correctness for a performance or a claim made in the context of the practice. Acknowledging a norm is expressing a commitment to place oneself under the authority of this norm. As Brandom explains, based on Kant’s theory of rationality, only rational creatures can undertake commitments because only rational creatures possess the capacity to make themselves responsible for certain judgments, attitudes and assertions49. If we understand the practice of international law as a rational normative practice, the key to interpreting it is to focus on the commitments that as participants in the practice states and other actors are required to make. As Postema explains, commitments are “essentially normative and intersubjective”; a commitment is a “mode of acting by a strongly rational agent who occupies a status constituted by normative relations among participants in a practice”50. It is by committing to a norm that one places oneself under the authority of rational concepts. An agent who undertakes commitments is an agent who judges certain performances as “appropriate, licit or required”51. It is crucial to keep in mind, here, that we are talking about a social practice instead of an individualistic endorsement of norms which are accepted by an individual in a stipulative way. To participate in a social practice, one must make one’s commitments public, attributing to others a standing to judge one’s own activity in the light of the same commitments. “The practical attitudes of taking or treating [someone] as committed” is a social practice, in which all participants of the practice engage. It is this practice, which is made-up of the joint-rational-action of its participants, that “ultimately institute the normative status of commitment”52. The practice comes “with the two socially distinct flavors of undertaking or acknowledging a commitment (oneself) and attributing a commitment (to another)”53. According to Brandom, “a performance expresses the practical attitude or has the significance of an undertaking of a commitment in case it entitles others to attribute that commitment”54. Our undertakings are interpreted by others as submissions to others, who in turn are collectively entitled to judge these undertakings as proper of improper in light of the interlocking system of norms that constitute the practice. The practice can be understood, as Sellars described and Brandom refined, in the sense of a “game of giving and asking for reasons”. By taking responsibility towards the norms of the practice, we become entitled to the consequences that follow from these norms and by acknowledging the entitlements of others we can also inherit these entitlements from the fact that most of the participants in the practice attributed these consequences through their mutual commitments. Once the members of the 49

Brandom (2008), p. 32. Postema (2007), pp. 279 – 307, 288. 51 Postema (2007), p. 288. 52 Brandom (1994), p. 139. 53 Brandom (1994), pp. 139 – 140. 54 Brandom (1994), pp. 165 – 166.

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practice recognize the force of salient principles that stem from such commitments and entitlements, the practice acquires a normative power over its participants, regardless of the individual consent of these participants to each individual norm, one-by-one. If custom is to acquire a binding status in international law, we must replace the consent-theory of the legitimacy of international law, which requires that each state expressly manifest a specific consent to each and every individual norm of the practice, with the idea of a normative practice the norms of which can be made explicit by inferential reconstruction of the “committive-inferential consequences” of the undertakings, endorsements, acknowledgments and attributions involved in the activity of participating in the practice55. I believe that probably this is what Dworkin means when he purports to describe his account of “constructive interpretation” of law as an “interpretive, self-reflective attitude addressed to politics in the broadest sense”56. To participate in a political practice is a “protestant attitude”, for Dworkin, because it “makes each citizen responsible for imagining what these commitments require in new circumstances”57.

2. Associative obligations and the legitimacy of International Law A central feature of the principle of salience is that it is presented as an element of a theory of legitimacy based on associative obligations among the members of a political community. Dworkin’s justification of his interpretive value of integrity, in the realm of state law, is based on the same idea. When Dworkin asks why it would be inappropriate to reject “checkerboard laws” in politics, integrity plays the role of placing a moral limit to political compromises. Consider the following example: given our persistent and good faith disagreement about the permission of abortion, could we cut a bargain and say that women born in odd days are allowed to make an abortion while women born on even days are not? This question appears spurious, given that most participants in argumentative practices would almost automatically think that this decision is worse from the moral point of view than whatever other decision the community might reach. Nevertheless, it is not always easy to see the problem with checkerboard laws. To show the problem of this kind of law we need more than referring to our intuitions. We must tell why these intuitions are justified, and Dworkin thinks that this justification cannot be found either on reasons of justice or on reasons of fairness. In case of irresolvable moral disagreement, Dworkin thinks that “it seems we have no reason of justice for rejecting the checkerboard strategy in advance, and strong rea55

Brandom (1994), p. 194. Dworkin (1986), p. 413. 57 Dworkin (1986), p. 413. For a more developed reconstruction of the idea of protestant interpretation, see Bustamante (2020), p. 113. See also, for a successful attempt to interpret Dworkin’s model of “Law as Integrity” in light of Brandom’s account of social practices, Decat (2015). 56

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sons of fairness for endorsing it”58. If we consider only arguments of substantive justice, it might be possible to say that a checkerboard compromise is better than a law that, say, prohibit abortion in all cases, for the checkerboard law will have at least secured compliance with the demands of substantive justice in 50 % of the cases. By the same token, incoherent at it might be, the agreement would fully respect the demands of fairness, since it would have been reached through a process in which all participants had equal opportunity to influence on the decision and reached the compromise as autonomous agents. We must explain, therefore, why almost all the parties would not even consider this kind of checkerboard laws. We must explain why all the parties in a given moral conflict, including when they are with the minority and could, in theory, benefit from a checkerboard law, unanimously tend to recognize the unacceptable character of these laws. Dworkin’s response to this challenge is that what sustains our nearly universal reproach for checkerboard laws is our commitment to the value of integrity, which imposes on our community a strong demand for political responsibility in the collective decisions that concern rights and duties we hold as citizens. Dworkin employs here an analogy with the discovery of the planet Neptune, which had been postulated by astronomers even before they actually saw the planet through a telescope. Given what science knew about the laws of physics, the presence of a planet in Neptune’s orbit was the only explanation available for the behavior of the remaining planets in the solar system: “Our instincts about internal compromise suggest another political ideal standing beside justice and fairness. Integrity is our Neptune. The most natural explanation of why we oppose checkerboard statutes appeals to that ideal: we say that a state that adopts these internal compromises is acting in an unprincipled way … The state lacks integrity because it must endorse principles to justify part of what it has done that it must reject to justify the rest”59.

This analogy seems to explain, from the practical angle, our intuitions about the presence of a third political ideal. But where does the foundation of this political value lie? Even if integrity is our Neptune, that is, if it is the part that is missing in our political theory to make it consistent with our deliberative practices, a good political philosophy must explain what grounds this political ideal and why it must be classified as virtuous in a democratic society. Dworkin believes that the foundation of integrity does not lie in any metaphysical hypothesis. It resides, instead, in the thought that is a “special political virtue” that he believes all decent political communities should pursue60. On this idea, we must be capable to assess the consistency in principle of the decisions of our community, demanding that it acts on a moral scheme constructed according to a consistent and intelligible system of principles. The idea of self-govern58

Dworkin (1986), p. 182. Dworkin (1986), pp. 183 – 184. 60 Dworkin (1986), p. 187.

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ment, for instance, only makes sense in light of such conception. If our responsibility as members of a group requires us to see ourselves as “in some sense authors of the political decisions made by our governors”, then we must accept integrity as a political principle because no citizen can “treat himself as the author of a collection of laws that are inconsistent in principle, nor can he see that collection as sponsored by any Rousseauian general will”61. The idea of freedom, as interpreted by Kant and Rousseau, would only make sense under the assumption of a political value like integrity62. The need to regard or take the political community as author of its laws constitutes an important reason to justify the importance of integrity. Integrity, says Dworkin, “insists that each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimension of any explicit political decisions”63. Integrity works, therefore, as an important ingredient of citizenship, inasmuch as it imposes not only a duty to obey “the discrete political decisions of the community one by one – as political philosophers usually present it”64. On the contrary, it imposes on citizens a “more protestant idea” of “fidelity to a scheme of principles each citizen has a responsibility to identify, for himself, as his community’s scheme”65. It is crucially important that the community only is entitled to act while its decisions can be conceptualized as the decisions of a responsible agent. By the same token, it is equally important that each citizen is entitled to judge for herself what these principles require. Political association, for Dworkin, becomes binding only in a community where certain associative obligations hold. The members of a community conceive themselves as bound by communal obligations which hold four important features: first, they are special, in the sense that they hold “distinctively within the group”; second, they are personal, in the sense that “they run directly from each member to each other member, not just to the group as a whole in some collective sense”; third, they flow from “a more general responsibility each [member] has of concern for the well-being of others in the group”; and fourth, they are deeply ega61

Dworkin (1986), p. 189. This idea may have some important consequences for the value of consent in international law. The powers to consent or promise can be described as normative powers, i. e. powers to change our normative landscape, create new obligations, commit to special norms, build relationships, attachments, and so on. See MacCormick and Raz (1972). A question that naturally emerges when one talks about normative powers is “why are they important?”, or “what makes it valuable that I have the power to intentionally alter my normative environment?” These are important questions, which have been addressed by many philosophers and should be left for another occasion. For now, the important point is to show that integrity can place a limit to normative powers. There seems to be little value or rationality in employing normative powers like consenting and promising to create norms like our checkerboard laws, i. e. norms that force us to endorse a principle that contradicts the rest. 63 Dworkin (1986), p. 189. 64 Dworkin (1986), p. 190. 65 Dworkin (1986), p. 190. 62

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litarian, in the sense that members of the political association must show “not only concern but an equal concern for all members”66. There seem to be two ideas in Dworkin’s account of associative obligations that are crucial for our purpose. The first is that associative obligations stem from our commitment not only to the principle of political equality, but also to a correlative idea, which is the value of fraternity. Fraternity, for Dworkin, is interpreted as reciprocity, and stands in the very core of the idea of political legitimacy: “The best defense of political legitimacy – the right of a political community to treat its members as having obligations in virtue of collective community decisions – is to be found not in the hard terrain of contracts or duties of justice or obligations of fair play that might hold among strangers, where philosophers have hoped to find it, but in the more fertile ground of fraternity, community, and their attendant obligations. Political association, like family and friendship and other forms of association more local and intimate, is in itself pregnant of obligation”67.

The second, in turn, is the requirement that respect for individuals in a political community implies, as Dworkin said in a fragment quoted above, that each citizen “has a responsibility to identify”, for herself, the content of the laws of her community. This responsibility implies, I argue, an interpretive responsibility to make a judgment about what the principles of her community entail. This is not a responsibility to determine the content of her laws by immediate perception – through some sort of dispositional ability – or by convention – through some sort of deferral that automatically identifies as correct the judgments of other assessors. Respecting this responsibility is important for Dworkin, because it is derived from a more general legitimacy requirement imposed on governments, which is the duty to respect the dignity of its people, which includes its two fundamental principles of “self-respect” – i. e. one’s responsibility to take one’s life seriously, “accept[ing] that it is a matter of importance that his life is a successful performance rather than a wasted opportunity” – and “authenticity” – i. e. the “special, personal responsibility for identifying what counts as success in his own life”68. Legitimacy requires that a government protect its citizens’ dignity. And dignity, in turn, requires protecting one’s judgments and the responsibilities and entitlements presupposed in the burden to make these judgments. We will see, in section 3.4, that this requirement of legitimacy entails, for this reason, the protection of certain attitudes, which must be responsible attitudes, in the reasoning process through which we identify salient patterns. But before turning our attention to these processes, we must consider an important objection to the application of the idea of associative obligations in international law. 66

Dworkin (1986), pp. 199 – 200. Dworkin (1986), p. 206. 68 Dworkin (2011), pp. 203 – 204.

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3. A discussion of the “lack of community objection” to associative models of legitimacy in International Law Before moving on to the third component of our conception of the principle of salience in international law we must respond to an important objection, which we might classify as the “lack of community objection”. According to the objection, “interpretivism as a theory of law relies on the very existence of community and more importantly a community which is aimed at … equal concern and respect for individual lives”69. But there is no such community in international politics. For Basak C ¸ ali, there are two interpretations of this objection. First, one may argue ˙ that the circumstances for constructive interpretation are absent in international law, since we sill lack a global community of people who share an interpretive attitude towards this practice and assign to that practice a common purpose to which interpretation should be sensitive. Second, even if the first objection can be overcome, the ideal of integrity commands respect for individuals, in such a way that only can be attained in a “single political community”, rather than “multiple political communities”70. This objection is important, and if correct it can undermine both Dworkin’s attempt to justify associative obligations in international law and our attempt to argue for a “fair association model” among different political communities that voluntarily engage in a supranational institutional practice. Nevertheless, the objection must be overcome if there is any hope for legitimacy of institutions in the domain of international law. Perhaps the first interpretation of the no-community objection is based on some empirically correct observations, but I do not think it undermines Dworkin’s account of the principle of salience. The salience principle is offered not as an empirical description of the practice but as an interpretation of what it takes for the practice of political institutions in international law to be, given the historical development of international law and the current practice, a legitimate institutional order. It is true that the value of political integrity requires some conditions to become an applicable value. Just like the idea of justice, which becomes relevant under some “circumstances” like “limited altruism” and “moderate scarcity”, integrity also requires some conditions to apply, which Waldron named the “circumstances of integrity”71. Dworkin assumes that “we must identify features of the real world which distinguish it, on the one hand, from a utopia in which integrity would be redundant, and, on the other hand, from a nightmare world in which integrity would be impracticable”. For Waldron, “Dworkin’s conception of integrity is structured by exactly these distinctions”72. On the one hand, Dworkin claims that “integrity would not be needed as 69

C¸ali (2009), p. 805. C¸ali (2009), p. 818. 71 Waldron (1999), p. 192. 72 Waldron (1999), p. 192.

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a political virtue in a utopian state”73. In a utopic world, all political decisions would be perfectly just and equanimous, and there would be no need for a distinct political value establishing that the community speak with a single voice. On the other hand, in a dystopic world dominated by skepticism with regards to the belief in moral and political principles which are capable to justify the exercise of coercive political authority, the point of a legitimate government is illusory and unachievable. Integrity only emerges as a distinct value because it is possible for us to fail justice and fail to endorse all the principles it requires. Justice must be on our horizon, nonetheless. It can be the case, in the real world, that integrity requires us “to support legislation we believe would be inappropriate in the perfectly just and fair society and to recognize rights we do not believe people would have there”74. Hence, our question is whether this ideal of integrity is possible in the international community of states and peoples we have struggled to develop since the end of World War II. It is true that any interpretation of international law must have sufficient fit with institutional history to count as an interpretation of law, instead of an invention of a new and completely ideal norm. But to count as an interpretation it is not necessary that we can already find in the political community a perfectly arranged community. Most states are arranged in ways that fall short of an ideal of justice, and it is precisely because of this that integrity works for them. As Gerald Postema put it while explaining the discursive character of the normative practice of international law, for this practice to work we must recognize associative obligations that are built on some “informational commons”. We need enough commitment to common norms that are within the grasp of the members of such community. But this demand of a discursive practice should not be confused with (and does not presuppose) “a rich repertoire of shared values” or a “deep sense of common identify” among participants75. Perhaps time can create such sense of community and strong commitment to liberal values in international law, and perhaps it is good that we must pursue them. But desirable as these associational bonds might be, the relationships required by the discursive practice are only those inferentially related to the “interactive deliberative practical reasoning” assumed to achieve the ends of international law. “Shared values or communal bonds” might be likely to emerge from the interaction in the deliberative framework, but the decisive point is the mastery of the discursive practice, i. e., the “techniques of linking reasons to conclusions and decisions and using them as reasons for further conclusions and decisions”, which does not presuppose a strong commitment to any “strong form of communal association”76. Instead, it demands only a “significant degree of overlapping experience and shared attempts to articulate its public significance, all in the context of asserting claims and counter-claims on 73

Dworkin (1986), p. 176. Dworkin (1986), pp. 176 – 177. 75 Postema (2007), p. 301. 76 Postema (2007), p. 301.

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resources and behavior”77. The engagements are “communal in only a very thin, lowtempered sense”, because what is necessarily shared are only the commitments required to participate in a rational social practice78. If the bonds of associative obligations are satisfied with equality and reciprocity, like Dworkin postulates, we need nothing more than Postema’s “low-tempered sense” of associative obligations. For Dworkin, our political practices must be interpreted as assuming not that integrity is important because the community “is a distinct entity”, but “that the community should be seen as a distinct moral agent because the social and intellectual practices that treat a community in this way should be protected”79. We should regard international institutions and the norms they produce, as well as states and other subjects of international law, as committed to the principles of equality and reciprocity because this is a discursive requirement embedded in the very idea of a fair an legitimate association of states in international law. The point is not a matter of description of concrete communities or identification of common convictions, religions, customs, cultures, ethnical commitments, and so on. It is a matter of common entitlements. Only a political community that is said to undertake the responsibility of treating its members as equals becomes entitled to “deploy a monopoly of coercive force”80. Dworkin can extend this account beyond a concrete political community, to develop a theory of the legitimacy of international law, if we can ground the legitimacy of international norms and institutions in associative relationships among states that, like citizens in a community of principle, are treated as equals. This seems to be part of the point of the principle of mitigation, which holds that states have not only a duty to strangers, but also to their own citizens, to create international institutions and enhance the legitimacy of international law. Despite his skepticism about Dworkin’s principles of salience and mitigation, Thomas Christiano has a similar proposal to justify international institutions on the basis of the democratic value of political equality81. Democratic institutions “are legitimate to the extent that and because they publicly realize the equal advancement of interests of the members of the society”82. If we apply these two democratic values to international law, it becomes possible to derive its legitimacy “from the fact that the system of international law and institutions is a system of voluntary association among states”83, The “moral foundation of international law” is based on the “importance of states for the advancement of interests of persons”84. 77

Postema (2007), pp. 301 – 302. Postema (2007), pp. 301 – 302. 79 Dworkin (1986), pp. 187 – 188 (emphasis added). 80 Dworkin (1986), p. 188. 81 Christiano (2010), p. 119. 82 Christiano (2010), p. 121. 83 Christiano (2010), p. 122. 84 Christiano (2010), p. 124. 78

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It seems, therefore, that C¸ali’s objection can be overcome, even with regards to its second aspect. A community of states that treat themselves as equals, and who undertake commitments that can be reciprocally demanded, in the sense that each member is entitled to refer to these commitments in order to make others morally liable, counts as a single community in a normative sense. It is a community in the normative sense because its members become responsible to recognize reciprocal entitlements under shared norms.

4. Salience reasoning Dworkin’s principle of salience only works if there is, first, a general normative practice of endorsing salient principles in international law, and, second, an integrated account of the associative obligations of states and individuals. The idea of political equality informs this account, either when it comes to the relationships among individuals, within the state, or the relationships among states, in the international realm. There is no discontinuity between the legitimacy requirements of municipal legal systems and international institutions. Nevertheless, important as these two conditions might be, they are still insufficient to provide a satisfactory account of the principle of salience, which constitutes the structuring principle for the legitimacy of international law. The part that is missing is an account of salience reasoning, or the interpretive attitude required to achieve salient norms and practices in international law. Participants seeking for salient patterns in a social practice must endorse a framework of common reasoning. They must commit to the practice to sustain, through this commitment, the authority of such salient patterns. They should avoid the assumption that they are reasoning from salient patterns, and master instead the implicit norms that we follow, perhaps without being completely aware, when we reason to achieve such salient patterns85. Again, Postema provides an insightful explanation of this form of reasoning, which is appropriate for international law and must be assumed if Dworkin’s principle of salience is to fulfil its job. Postema argues that the idea of “natural salience”, which is usually associated with Lewis’s model of conventions, does not provide a plausible account of salience reasoning. Under the model of natural salience, some readers have described Lewis as treating salience “simply as a brute fact about us”. This view assumes that “it is just a fact about the minds of individual agents that certain properties of situations or actions, and certain descriptions attached to them, immediately (without intervention of explicit or implicit reasoning) appear conspicuously unique to them, and that they (again directly) tend to act accordingly”86. Postema calls this “primary salience”.

85 86

Postema (2008), p. 45. Postema (2008), p. 43.

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But the idea of primary salience is too crude. A more sophisticated perspective should account for the fact that rational agents “reason to decisions regarding the options available to them from second-order and perhaps third-order salience”87. In a second level, an agent is assumed to rely on some “inductive basis” for “predicting primary salience for her opponents”, and, on a third level, she may “choose the strategy she thinks is most likely to have second-order salience for other parties, that is, the strategy that it is most likely her opponents will predict to have primary salience to their opponents (including for her)”88. Even this more complex account remains problematic, however, because the assumption that each individual is reasoning on her own still holds: “Salience reasoning, on this model, is ordinary decision-theoretical reasoning based on inductivelybased predictions of the choice of others”89. It is a reasoning process which involves “no reciprocity or mutuality”. In the context of a social practice, this model should be replaced by a model of public salience in which participants are committed to reaching a common pattern. In this model, “the recognition of salience … is not a private affair; it is social, public. The salient is that which is uniquely conspicuous to us”90. For this model to work, participants must engage in a distinctive type of practical reasoning, which Postema labeled “first-person plural practical reasoning”. Morality, for Postema, is a species of first-person plural practical reasoning. First-person plural reasoning changes not the data which constitutes the object of our judgments and assessments, but the “framework of interpretation in which the data is articulated and pursued”91. Salience reasoning entails six important attitudes and commitments that make up this common framework. First, group recognition: “agents think themselves as members of some group”; second, act holism: they “think their individual actions not in isolation from the joint act and the individual acts of other members, nor even modules combined with individually considered acts of others, but rather as parts of the joint-act whole”; third rationality holism: “the point, practical meaningfulness, and rationality of individual acts are strictly a function of the rationality of the whole and the relation of the individual act to the whole”; fourth, responsibility: each participant in the process of salience reasoning must be a responsible agent, i. e. she has special interpretive responsibilities that are “defined in terms of one’s part or task” in this common reasoning; fifth, deliberational partnership: agents regard themselves as a team, they “regard other members as partners in deliberation and action”; and sixth, informational holism: common reasoning draws on “commons on the mind, a body of common experience and information, and conceives of this information holistically”. It seeks for a common knowledge. The information and pattern achieved 87 Postema (2008), p. 43, discussing the following woks: Stammler and Sigden (1994), p. 658; Stahl and Wilson (1995), p. 218. 88 Postema (2008), pp. 43 – 44. 89 Postema (2008), p. 44. 90 Postema (2008), p. 44 (emphasis added). 91 Postema (1995), p. 40.

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through salience reasoning is common in the sense that it is “available for us”, and “public” or “objective” in this sense, “and so it is available for me and for you”92. I believe that salience reasoning provides the final ingredient for Dworkin’s principle of salience to work, and to equip participants of international legal order with a structuring principle for identifying concrete obligations emanating from customs and implicit norms in the normative practice of international law.

IV. Conclusion We reach, thus, an optimistic conclusion. There can be objective patterns of customary law. There are objective standards that become salient once the participants of the practice of international law engage in it with the correct attitude. For this attitude to flourish, there must be a general practice among states, one that creates associative bonds not by appealing to substantive ethical identities, but by treating the participants of the practice as equals and demanding reciprocity in their commitments and responsibilities in international law. Salient principles are jointly pursued and established in social practices, which embed principles that are presupposed to make the members of these communities equally committed to the persons they represent. In the end, it seems that legitimacy might be a distant ideal, but it is within our grasp. It requires a shared attitude and a common engagement in a principled practice of protecting persons and humans through international law. A practice that must be cherished, especially in the troubled times we live today. References Austin, John: The Province of Jurisprudence Determined, Cambridge 1847, reprint 1995. Besson, Samantha: Theorizing the Sources of International Law, in: Samantha Besson/John Tasioulas (eds.), The Philosophy of International Law, Oxford 2010. Brandom, Robert: Making it explicit, Cambridge 1994. Brandom, Robert: Reason in Philosophy, Cambridge 2008. Bustamante, Thomas: Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law, in: Canadian Journal of Law and Jurisprudence, 32, 2019, 5 – 43. Bustamante, Thomas: Revisiting Dworkin’s Philosophy of International Law: Could a Hedgehog Have Done It Any Other Way?, in: Canadian Journal of Law and Jurisprudence, 30 (2), 2017, 259 – 285. Bustamante, Thomas: Revisiting the Idea of Protestant Interpretation: Towards Reconciliation between Dworkin and Postema, in: Thomas Bustamante/Thiago L. Decat (eds.), Philosophy 92

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of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J Postema, Oxford 2020. Christiano, Thomas: Democratic Legitimacy and International Institutions, in: Samantha Besson/John Tasioulas (eds.), The Philosophy of International Law, Oxford 2010. Christiano, Thomas: The Legitimacy of International Institutions, in: A. Marmor (ed.), The Routledge Companion to Philosophy of Law, New York 2012. C¸ali, Basak: On Interpretivism and International Law, in: European Journal of International ˙ Law, 20, 3, 2009. Decat, Thiago L.: Inferentialist Pragmatism and Dworkin’s ‘Law as Integrity’, in: Erasmus Law Review 14, 2015. Dworkin, Ronald: A Matter of Principle, Cambridge 1985. Dworkin, Ronald: A New Philosophy for International Law, in: Philosophy & Public Affairs, 41, 2013, 2 – 30. Dworkin, Ronald: Justice for Hedgehogs, Cambridge, MA 2011. Dworkin, Ronald: Law’s Empire, Cambridge, MA 1986. Dworkin, Ronald: Objectivity and Truth: You’d Better Believe It!, in: Philosophy & Public Affairs, 25, 1996, 87 – 139. Franck, T. M.: Lessons of Kosovo, in: American Journal of International Law, 93, 1999, 857 – 860. Kelsen, Hans: Absolutism and Relativism in Philosophy and Politics, in: The American Political Science Review, 42, 1948. Kelsen, Hans: General Theory of Law and State, Oxford 1949. Marmor, Andrei: Three Concepts of Objectivity, in: Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy, Oxford 1995. MacCormick, Neil/Raz, Joseph: Voluntary Obligations and Normative Powers, in: Proceedings of the Aristotelian Society, Supplementary Volumes, 46, 1972, 59 – 102. Metha, C. Stammler/Sigden, R.: The Nature of Salience: An Experimental Investigation of Pure Coordination Games, in: Am. Econ. Rev, 1994. Postema, Gerald J.: Custom in International Law: A normative practice account, in: Amanda Perreau Saussine et al. (eds.), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, Cambridge 2007. Postema, Gerald J.: Morality in the First Person-Plural, in: Law and Philosophy, 14, 1995. Postema, Gerald J.: Objectivity Fit for Law, in: Brian Leiter (ed.), Objectivity in Law and Morals, Cambridge 2001. Postema, Gerald J.: Salience Reasoning, in: Topoi, 27, 2008, 41 – 55. Raz, Joseph: Between Authority and Interpretation, Oxford 2009. Raz, Joseph: Engaging Reason, Oxford 1999.

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Waldron, Jeremy: International Law: ‘A Relatively Small and Unimportant’ Part of Jurisprudence?, in: Luís Duarte D’Almeida (ed.), Reading HLA Hart’s ‘The Concept of Law’, Oxford 2013. Waldron, Jeremy: Law and Disagreement, Oxford 1999.

Notes on contributors Bethania Assy is a Professor of Philosophy of Law in both the Department of Law at the Pontifical Catholic University of Rio de Janeiro (PUC-Rio) and the State University of Rio de Janeiro (UERJ), Brazil. She is coordinator of the UNITWIN/Unesco Chair Programme titled “Human Rights: Violence, Government and Governance”, which is led by PUC-Rio. She is also Adjunct Coordinator of Center of Human Rights/PUC-Rio. Her highlighted publications include: Ethics, Responsibility and Judgment in Hannah Arendt (Perspectiva Press/Brazil). She was recently a finalist in the 58th Jabuti Prize awarded by the Brazilian Chamber of Books. Professor Dr. Bethania Assy Departamento de Direito – Programa de Pós-Graduação Pontifícia Universidade Católica do Rio de Janeiro Rua Marquês de São Vicente, 225, Gávea Rio de Janeiro, RJ – Brasil – 22451 – 900 [email protected]

*** Henny Blomme is affiliated with the Institute of Philosophy at KU Leuven (Department for Metaphysics, Philosophy of Religion and Philosophy of Culture) and serves as a member of the Leuven Research Group on Classical German Philosophy. In 2015, he received the quinquennial International Junior Kant Prize, awarded by the Kant Society and the Silvestro Marcucci Foundation (Internationaler Kant Nachwuchspreis). His highlighted publications include: “The completeness of Kant’s metaphysical exposition of space”. Kant-Studien, 103 (2), 139 – 162; co-edition of Karl Marx, Capital et profit. Cahiers XVI – XVII des manuscrits de 1861 – 1863. Paris: Classiques Garnier, 2015. Dr. Henny Blomme Centre for Metaphysics, Philosophy of Religion and Philosophy of Culture Andreas Vesaliusstraat 2 – box 3220 99993000 Leuven [email protected]

*** Maria de Lourdes Borges is a Professor of Moral Philosophy in the Department of Philosophy at the Federal University of Santa Catarina, Brazil. She is currently president of the Brasilian Kant Society. Her highlighted publications include: Emotion, Reason, and Action

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in Kant (Bloomsbury Publishing, UK, 2019); “Physiology and the Controlling of Affects in Kant’s Philosophy” (Kantian Review, 2008); and “What can Kant teach us about emotions?” (The Journal of Philosophy, 2004). Professor Dr. Maria de Lourdes Borges Departamento de Filosofia Centro de Filosofia e Ciências Humanas – CFH Universidade Federal de Santa Catarina 88040-900 – Florianópolis, SC Brasil [email protected]

*** Thomas Bustamante is a Professor of Law and Legal Philosophy at the Federal University of Minas Gerais, Brazil. He served as a Lecturer at University of Aberdeen, UK from 2008 until 2010. His highlighted publications include: (ed.) Philosophy of Law as an Integral Part of Philosophy – Essays on the Jurisprudence of Gerald J Postema (Hart Publishing, UK, 2020); “Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law” (Canadian Journal of Law & Jurisprudence, 2019); “Comment on Gy-rfi-Dworkin, Vermeule and Gy-rfi on Constitutional Interpretation: Remarks on a Meta-Interpretive Disagreement” (German Law Journal, 2013). Professor Dr. Thomas Bustamante Faculdade de Direito Universidade Federal de Minas Gerais Avenida João Pinheiro, n8 100 – Centro 30130-180 – Belo Horizonte/MG, Brasil [email protected]

*** Giorgia Cecchinato is Professor of Modern Philosophy and Aesthetics at the Federal University of Minas Gerais, Brazil. She was Mitarbeiterinnen at the Ludwig-Maximilians-Universität (München, 2007 – 2008) and she held a DAAD scholarship at Federal University of Paraná, Brazil (2008 – 2010). Her highlighted publications include: Fichte und das Problem einer Ästhetik (Würzburg: Ergon, 2009); “Weder Historismus noch Hegelianismus Fichte in der Existenzphilosophie Luigi Pareysons” (Fichte-Studien, Amsterdam, 2013); and Kant and the Metaphors of Reason (Olms – Wiedmann, Hildesheim – Zürich – New York, 2015). Departamento de Filosofia Universidade Federal de Minas Gerais Av. Antônio Carlos, 6627 – FAFICH – sala 4051 – Campus Universitário 31270-901 – Belo Horizonte/MG, Brasil [email protected]

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Cristina Foroni Consani is a Professor of Legal and Political Philosophy at the Federal University of Paraná. She held a visiting scholarship in the Political Science Department at Columbia University, US (CAPES/2010). Her highlighted publications include: “Jefferson vs. Madison revisited” (Jahrbuch fur Recht und Ethik, 2013); The paradox of constitutional democracy (book published in portuguese, Lumen Juris Press, Brazil, 2014); and “On a possible democratic deficit in the Habermasian cosmopolitan model” (article published in portuguese in Veritas, Brazil, 2019). Departamento de Filosofia Universidade Federal do Paraná Rua Dr. Faivre, 405 – 68 andar – Ed. D. Pedro II 80060-140 – Curitiba/PR, Brasil [email protected]

*** Darlei Dall’Agnol is a Professor of Ethics and Moral Philosophy at the Federal University of Santa Catarina, Brazil. He was visiting scholar in Metaethics at University of Michigan in Ann Arbor, US (2006 – 2007); visiting scholar in the Centre for Practical Ethics at University of Oxford, UK (2015 – 2016) and participated recently of Fulbright – Exchange Visitor Program – CIES. His highlighted publications include: Towards Neurobioethics (Cambridge Scholars, US, 2020); “An agency model of consent and the standards of disclosure in health care: Knowing-how to reach respectful shared decisions among real persons” (Journal of Evaluation in Clinical Practice, 2019); and “Knowing-how to care”. (Journal of Medical Ethics, 2016). Professor Dr. Darlei Dall’Agnol Departamento de Filosofia Centro de Filosofia e Ciências Humanas – CFH Universidade Federal de Santa Catarina 88040-900 – Florianópolis, SC, Brasil [email protected]

*** Charles Feldhaus is a Professor of Moral and Political Philosophy at the State University of Londrina, Brazil. He was a visiting scholar at Martin Luther Universität Halle-Wittenberg (2015). His highlighted publications include: “Kant, Schiller, Obligation and Chimerical Ethics”, in: Kant und seine Kritiker (Hildesheim: Georg Olms, 2018); and “On international law in Kant and Rawls” (Studia Kantiana, Brazil, 2019).

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Professor Dr. Charles Feldhaus Departamento de Filosofia Universidade Estadual de Londrina – UEL Campus Universitário s/n Caixa Postal 10011 86057-970 – Londrina, PR, Brasil [email protected]

*** Vinicius Berlendis de Figueiredo is a Professor of Moral, Political Philosophy and Aesthetics at the Federal University of Paraná, Brazil. He was visiting Professor at Université de Paris X, Nanterre and at the Pontifical Catholic University of Rio de Janeiro, Brazil. His highlighted publications include: « Note sur deux moments de la finalité de la nature chez Kant » (Studia Kantiana, Brazil, 2018); « Determination et reflexion dans la philosophie pratique de Kant » in: Recht und Frieden in der Philosophie Kants, Berlin: Walter de Gruyter, 2008); « Le souci de la réalité dans la politique kantienne » (Les Études Philosophiques, France, 2001). Departamento de Filosofia Universidade Federal do Paraná Rua Dr. Faivre, 405 – 68 andar – Ed. D. Pedro II 80060-140 – Curitiba/PR, Brasil [email protected]

*** David Hoyos García is Ph.D. candidate/researcher on Latin-American Literature and Cultural Studies at McGill University (Montreal, Canada). He was a visiting scholar in the Department of Arts and Music at the Federal University of Paraná, Brazil (2019). His highlighted publications include: “Postcolonial Narrative and Language as Aesthetic Matter in Ciro Guerra’s Embrace of the Serpent” (Luciernaga Communication Review, 2019); “Adrián Caetano and the memory of the Argentine dictatorship: the case of Chronicle of an escape” (Book section for Multidisciplinary perspectives on contemporary, Argentina, 2019) and Rana de Arena (Eafit University Press, 2021). e-mail: [email protected]

*** João Henrique Salles Jung is Ph.D. candidate in Philosophy at the Pontifical Catholic University of Rio Grande do Sul (PUCRS). He is a former President and Fellow Researcher at Instituto Sul-Americano de Política e Estratégia (ISAPE). His highlighted publications in-

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clude: (ed.) Philosophy and International Relations: crisis in the liberal model? (book published in portuguese, Fundação Fênix Press, 2019); and “As relações Brasil-índia: a Cooperação Sul-Sul na agenda de Política Externa Brasileira” (Revista de Estudos Internacionais, Brazil, 2020). [email protected].

*** Joel T. Klein is Professor of Moral and Political Philosophy at the Federal University of Paraná, Brazil. He held a visiting scholarship at the Humboldt Universität zu Berlin (2010; 2014 – CAPES/DAAD Scholarship) and a visiting professorship at the LudwigMaximilians-Universität (München, 2019 – 2020 – Alexander von Humboldt Foundation Scholarship). His highlighted publications include: “Die Weltgeschichte im Kontext der Kritik der Urteilskraft” (Kant-Studien, 2013); Kant and the Idea of Universal History (book published in Portuguese, Loyola Press, Brazil, 2016); “Kant on Legal Positivism and The Juridical State” (Kant Yearbook, 2021); and “On Serpents and Doves: The systematic relationship between prudence and morality in Kant’s political philosophy” (KantStudien, 2021). Professor Dr. Joel T. Klein Universidade Federal do Paraná Rua Dr. Faivre, 405 – 68 andar – Ed. D. Pedro II 80060-140 – Curitiba/PR, Brasil [email protected]

*** Maria Isabel Limongi is a Professor of Moral and Political Philosophy at the Federal University of Paraná, Brazil. She was a visiting Professor at the University of São Paulo (2011). Her highlighted publications include: Passions and Virtues in Thomas Hobbes (book published in Portuguese, Loyola Press, Brazil, 2009); “Hume e Harrington: faces do maquiavelismo britânico” (Revista Estudos Hum(e)anos, Brazil, 2020). Professor Dr. Maria Isabel Limongi Departamento de Filosofia Universidade Federal do Paraná Rua Dr. Faivre, 405 – 68 andar – Ed. D. Pedro II 80060-140 – Curitiba/PR, Brasil [email protected]

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Claudio Ladeira de Oliveira is a Professor of Constitutional Theory at the Federal University of Santa Catarina, Brazil. He was visiting a scholar at the University of Lisbon (2004). His highlighted publications include: (ed.) Essays on political constitutionalism (book published in Portuguese, Habitus Press, Brazil, 2019); “Judicialização da Política, auto-restrição judicial e a defesa da Constituição: algumas lições de Carl Schmitt em Der Hüter der Verfassung (Revista Dois Pontos, Brazil, 2020). Professor Dr. Claudio Ladeira de Oliveira Universidade Federal de Santa Catarina – Campus Universitário 88040-900 – Florianópolis/SC, Brasil [email protected]

*** Nythamar de Oliveira is Professor of Philosophy at the Pontifical Catholic University of Rio Grande do Sul (PUCRS). He was a visiting scholar at the New School for Social Research, US (1997 – 1998), at the University of Miami, US (2015 – 2016), and at the Universität Kassel, Germany (2012 – Alexander von Humboldt Foundation Scholarship). He has been a visiting Professor at the University of Toledo, US, since 2007 and philosophy area coordinator at CAPES (quadrennium 2018 – 22). His highlighted publications include: On the Genealogy of Modernity: Foucault’s Social Philosophy (Nova Science Publishers, US, 2003); “Zu einer hermeneutischen Begründung der Menschenrechte” (Deutsche Zeitschrift fur Philosophie, 2006); “The Phenomenological Defict of Critical Theory: Recasting AfroBrazilian Diasporic Identity in Postcolonial Perspectives” (Etudes phénoménologiques, Belgium, 2021). Professor Dr. Nythamar de Oliveira Pontifícia Universidade Católica do Rio Grande do Sul Faculdade de Filosofia e Ciências Humanas, Departamento de Filosofia. Avenida Ipiranga, 6681, Partenon 90619-900 – Porto Alegre, RS, Brasil – Caixa-postal: 1429 [email protected]

*** Celso de Moraes Pinheiro is a Professor of Moral and Political Philosophy and Philosophy of Education at the Federal University of Paraná, Brazil. His highlighted publications include: Kant and education: Philosophical reflections (Book published in Portuguese, Universidade de Caxias do Sul Press, 2007); « Pourquoi Kant affirme-t-il que l’éducation est nécessaire à l’homme? » in: Recht und Frieden in der Philosophie Kants (Berlin: Walter de Gruyter, 2008).

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Professor Dr. Celso de Moraes Pinheiro Departamento de Teoria e Prática de Ensino Universidade Federal do Paraná. Rua General Carneiro, 460 58 andar, Centro 80060-000 – Curitiba, PR, Brasil [email protected]

*** Rafael Rolo holds a PhD in Law from Pontifical Catholic University of Rio de Janeiro (PUC-Rio). He is also State attorney of Pará, Brazil. His highlighted publications include: “A concretização inventiva de si a partir da perspectiva do outro: Notas a uma Antropofilosofia Decolonial em Viveiros de Castro” (Revista Direito e Praxis, 2019, Brazil). Dr. Rafael Rolo Procuradoria-Geral do Estado do Pará Governo do Estado do Pará, Rua dos Tamoios, n. 1671, Batista Campos 66025540 – Belém, PA, Brasil

*** Soraya Nour Sckell is Associate Professor at the NOVA School of Law, Universidade Nova de Lisboa. She is the Principal Investigator of the project supported by FCT “Cosmopolitanism: Justice, Democracy and Citizenship without Borders” (PTDC/FER-FIL/30686/ 2017). She received the Wolfgang Kaupen-Preis (German Society for Sociology, section Sociology of Law, 2018) and the German-French Friendship Prize (Embassy of Germany in Paris, 2012). Her lighlighted publications include: A Ideologia, S. Paulo: Martins Fontes, 2019. À Paz Perpétua de Kant, S. Paulo: Martins Fontes, 2a ed., 2013; « Droit et démocratie chez Hans Kelsen » Trans-form-ação v. 38, n. 1, p. 57 – 80, 2015; “Os juristas e o direito em Bourdieu”, Tempo Social, v. 28, n. 1, p. 157 – 178, 2016. Profa. Soraya Nour Sckell NOVA School of Law Universidade Nova de Lisboa Campus de Campolide, 18 1099-032 Lisboa, Portugal [email protected]

*** Fernando Silva holds a PhD in German Studies from University of Lisbon (2016). He is currently a researcher at the Philosophy Center of the University of Lisbon and a visiting researcher in Brazilian and Argentian universities. He is co-editor of the Journal “Estudos Kant-

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ianos”, and founder and co-coordinator of the Study Group “Kant and German Idealism” at CFUL. His highlighted publications include: “Ein Spiel der Sinnlichkeit, durch den Verstand geordnet: Kant’s Concept of Poetry and the Anthropological Revolution of Human Imagination”, in: Knowledge, Morals and Practice in Kant’s Anthropology (Palgrave Macmillan, UK, 2018); Personhood: A Kantian concept between Empirical Psychology and Pragmatic Anthropology (Routledge, 2020, UK); and “Der Witz Begriff bei Kant und das Problem seiner Übersetzung ins Portugiesische” (Archiv für Begriffsgeschichte 15 (2020): 677– 682). [email protected] [email protected]

*** Milene Consenso Tonetto is a Professor of Moral Philosophy in the Department of Philosophy at the Federal University of Santa Catarina. She was visiting scholar at the University of Oxford, UK (2015/16) and at the Michigan State University, US (2017). Her highlighted publications include: “The Concept of Right in Kant and the Metaphor of the Wooden Head”, in: Kant and the Metaphors of Reason (Georg Olms Verlag, 2015); (ed.) Morality and Life: Kantian Perspectives in Bioethics” (Edizioni ETS, Italy, 2015); and “Kant’s contribution to the philosophy of human rights” (Estudos Kantianos, 2018). Professor Dr. Milene Consenso Tonetto Departamento de Filosofia Centro de Filosofia e Ciências Humanas – CFH Universidade Federal de Santa Catarina 88040-900 – Florianópolis, SC Brasil [email protected]

*** Marco Antonio Valentim is Professor of Philosophy at the Federal University of Paraná, Brazil. He was a visiting scholar in the Graduate Program in Social Anthropology at the National Museum of Rio de Janeiro (2012 – 2013) and the Graduate Program in Philosophy at the Pontifical Catholic University of Rio de Janeiro (2017 – 2018). His highlighted publications include: Extramundanidade e sobrenatureza: ensaios de ontologia infundamental (Cultura e Barbárie Press, 2018); and “Espécie & Monstro: variações sobre Darwin” (Revista de Filosofia Moderna e Contemporânea, 2020). Professor Dr. Marco Antonio Valentim Universidade Federal do Paraná Rua Dr. Faivre, 405 – 68 andar – Ed. D. Pedro II 80060-140 – Curitiba/PR, Brasil [email protected]

Notes on contributors

319

Delamar José Volpato Dutra is a Professor of Legal and Political Philosophy in the Department of Philosophy at the Federal University of Santa Catarina. He was a visiting scholar at the Université Catholique de Louvain, Belgium (1995 – 1996), Columbia University, US (2003 – 2004) and Aberystwyth University, UK (2011 – 2012). His highlighted publications include: Reason and Consensus in Habermas: the discursive theory of truth, morals, law and biotechnology (book published in portuguese, UFSC Press, 2005); “Torture: banality of evil or radical evil?” (Filosofia Unisinos, 2020); and “The Taint of Torture and the Brazilian Legal System” (Arxius de Ciències Socials, 2019). Professor Dr. Delamar José Volpato Dutra Departamento de Filosofia Centro de Filosofia e Ciências Humanas – CFH Universidade Federal de Santa Catarina 88040-900 – Florianópolis, SC Brasil [email protected]

Index Accountability 10 f., 254 Adorno 167, 263, 267 Agamben 18 agreement 24, 41, 91, 94, 98, 117, 119, 121, 165, 168, 209, 212, 256, 299 Albert 129 – 132, 137, 140 f., 143, 145, 151 – 153, 238 f. Amerindian cosmopolitanism 145 Anderson 264 Anthropocene 130, 229, 235, 238 anthropology 17, 47 – 52, 55, 60 – 62, 130, 133 – 135, 138 f., 143 f., 219 f. Appiah 7 Archibugi 7 f., 280 Aristotle 156 f., 159, 165 Arrighi 7 f. Assy 134 Austin 286 Axinn 83 Bachelard 231 Balibar 7 f., 10, 224 Beck 7 f. Bell 7 Benhabib 7, 42, 166, 265 Benjamin 130, 167, 263 Bergson 236 f. Bioethics 204 Blanco Arboleda 220, 223 Blomme 311 Brandom 297 f. Broadie 26 Brock 7 Buchwalter 270 Bull 273 Bustamante 285, 286, 288, 291, 298 Butler 265 Buzan 264, 271, 277 f. Byrd 83, 90, 99 – 101

C¸ali 302, 305 Caney 7, 244 f., 249 – 257 capitalism 36, 130, 185, 264 Carson 83 Cassese 7 Castells 7 Cavallar 81, 83 Chakrabarty 229 Chase-Dunn 7 Christiano 286, 304 citizen 7, 99 f., 102 f., 106 f., 118, 140, 155 – 163, 165 – 170, 179, 269, 298, 300 f. citizenship 8 – 11, 103 f., 106, 155 – 170, 173, 279, 300 city 23, 113, 158, 219, 226, 233 civil war 24, 40, 85, 90 Clastres 132, 147 climate change 215, 243 – 246, 250 – 258 climate ethics 244, 246 f., 258 Cohen 47, 191, 193 Colliot-Thélène 18 colonialism 123, 226 commercial state 118 communicative action 264, 266, 270, 277 f. community 8 – 10, 17, 19, 29, 85, 92, 102, 118, 120, 135, 146, 152, 155, 157, 163, 167, 169 f., 190, 192 f., 200, 264, 269 f., 272, 277, 279, 288, 290, 298 – 305 constitution 32, 37, 42, 71, 81, 85, 87 – 90, 93, 98, 100, 102, 123, 148, 156, 164, 174 f., 177 f., 182 – 184, 186, 189, 192, 194 – 196, 201, 206 – 208, 213, 232, 264, 270, 289 Convers 222 corruption 26, 93 cosmology 105, 112 f., 238 cosmopolitan 7 – 11, 17 – 19, 24, 29, 32 f., 40 – 43, 54 f., 70 f., 75 f., 81, 83, 97 – 104, 106 f., 109, 111 f., 117 f., 130, 160, 164, 166 – 168, 170, 174 f., 178 f., 181, 183, 185 f., 189 f., 192 – 194, 197 f., 200 f., 211,

322

Index

220, 223 f., 229, 237, 263, 265 – 270, 273, 276 – 281 cosmopolitan democracy 42, 197, 280 cosmopolitan justice 190 cosmopolitan law 9 f., 17 f., 75 f., 97, 100 – 104, 164, 200 cosmopolitanism 8 f., 11, 41 f., 81, 84, 92, 105 – 107, 109 – 111, 113 f., 129, 133, 143, 152, 168, 175, 185, 189, 194, 198, 218, 221 f., 223 – 227, 265, 269, 271, 273 – 276, 278 – 281 cosmopolitics 10, 138 f., 141, 149, 217 cosmos 105, 112 f., 133, 226, 231, 235, 238 Cox 7, 267, 277 crisis 11, 36, 118, 124, 185, 191, 195, 204, 210, 214 Cronin 194, 199 f., 226 cultural studies 226 culture 18, 85 f., 91 f., 107 – 109, 135, 138 – 140, 151, 200, 220, 223 f., 270

Dall’Agnol 313 De Oliveira 263, 271, 278 De Pascale 120 Decat 298 Delanty 7 Deleuze 21, 131 f., 134, 145, 236 democracy 9, 11, 41, 43, 162, 165, 170, 179, 185, 189, 193 – 195, 197, 199, 201, 205 f., 209, 212, 214, 268, 270, 280, 288 DeNora 217 Derrida 7, 134, 137, 144 f., 198 development 9, 11, 35, 37, 48, 90, 92 f., 107, 112 f., 117, 119, 124, 174 f., 177, 186, 192 f., 196, 200, 244, 247 – 249, 251, 256 – 258, 302 Dietzsch 67 disagreement 161, 168, 298 discourse 31, 41, 50, 57, 183, 222 f., 226, 256, 269, 273, 294 discrimination 8, 104, 173, 266 diversity 23, 76, 109 f., 112, 135, 138, 143, 214, 279 doctrine of right 77 Dodson 83 Dussel 278 f. Dworkin 285, 287 – 294, 296,298 – 305, 307

Earth 17, 26, 40 f., 65, 69, 72 – 75, 77, 82, 86, 93 f., 97 f., 100 – 102, 104, 130, 137 f., 143, 207, 235 f., 239, 250 Eberl 75 ecology 220 f., 223, 225 – 227, 268 Edgar 177 education 55, 106, 204, 214 emancipation 109, 265, 267, 272 empire 85, 182 environment 9, 125, 160, 193, 197, 211, 232, 251, 266 f., 278, 300 environmental ethics 250 Enzensberger 265 equality 36, 81, 85, 92 f., 145, 164, 166 f., 178, 197, 247, 250, 296, 301, 304 f. ethics 20, 37, 129, 191, 244, 258, 272 f., 275 f., 287 ethnomusicology 219 f. Europe 34, 36, 118, 121, 123 f., 213 external relation 81 Falk 8 Feldhaus 182 Fichte 66 f., 83, 117 – 125, 186 Flikschuh 82, 89 Foroni Consani 203 Forst 265, 276 Foucault 132 Franck 290 Fraser 265 freedom 33, 40, 43, 71 – 73, 82 – 85, 87 – 95, 98, 118, 120 – 125, 143, 160, 162 f., 165 – 170, 178, 197, 207, 210, 233, 237, 269, 271, 300 Fuchs 117 f. Fukuyama 278 Fusaro 118, 122 future 9, 77, 81, 107, 117, 119, 130, 137, 141, 145, 148, 170, 205, 211, 214 f., 236, 250, 253, 257 f., 263 Gaille-Nikodimov 10 gas emission 248 Geismann 83, 89 genocide 131, 290 Georgescu-Roegen 239 Giddens 7 Gilbert 220, 224

Index global bioethics 214 global economy 249 global governance 184, 190, 196, 198, 203, 209 – 212, 215, 269 global government 143, 198 global justice 211, 213, 250, 270 f., 273, 278 global order 10, 180, 183, 189, 245 global politics 8, 10, 189 globalization 7, 185, 189 f., 195, 201, 205, 211, 213, 220, 224, 263, 265, 268, 270, 278, 280 government, 32, 76, 87, 125, 143, 157, 179, 197 – 199, 300 Grimm 105 Guarnizo 7 Guyer 50 Haacke 266 Habermas 7, 9, 31 – 33, 40, 40 – 44, 82, 93 f., 167, 169, 173 – 175, 177, 179 – 186, 189 – 201, 263 – 269, 271 f., 275 – 280 Haraway 231, 235, 277 Hart 44, 286 Harvey 7 Hegel 272 hegemony 211, 267, 277, 281 Heidegger 130 Held 7 f., 280 Henrich 263 Herdt 21, 27 Hobbes 38, 41, 43, 160 – 162, 165, 167, 169, 274 Höffe 83, 93 f., 195, 199, 204, 211 f. Hoffman 265, 267 Honneth 265 f., 270 – 273, 276 – 281 Horkheimer 167, 267 hospitality 99 – 104, 143 f., 163 f., 168, 179, 181, 211 Hruschka 83 f., 90, 99 – 101 human nature 19, 69 f., 74 f., 110, 274, 278 human right 254 Hume 11, 17 – 29, 108, 294 Huntington 166, 278 Idealism 111 identity 8, 10, 19, 62, 170, 219, 221 – 224, 226, 234, 269 – 271, 273, 280

323

ideology 10 imagined community 264 inclusion 160 f., 162, 179, 183, 191, 270, 274 injustice 33 – 35, 44, 75, 87, 104, 144, 177, 253 institution 82, 120, 178, 183 f., 192, 196, 200, 204, 206, 211 f., 214 f., 288 intergenerational 258 international governance 203, 205 international law 10, 31 – 34, 36, 38 – 42, 44, 67, 69 – 73, 75, 78, 89, 91, 97 – 100, 104, 174 – 181, 183 – 186, 190 – 194, 196, 198 – 200, 209, 211, 215, 265, 276, 285 – 291, 296 – 298, 300 – 305, 307 international relations 31, 34, 39 f., 42 f., 170, 173, 192, 194, 214, 265, 270, 278 – 280 international society 193, 274, 278 interpretation 36, 40, 42, 68, 82, 89 f., 100, 103, 122, 125, 147, 168, 176, 186, 209 f., 225, 233, 236 f., 290 – 292, 294, 298, 302 f., 306 interpretivism 302 Joas 265 Jones 7 Jung 277 f. jurisprudence 17 f., 270, 285 just war 31, 34 – 39, 41 f. justice 8 f., 11, 34 f., 41 f., 44, 157, 174, 185, 191 f., 196, 205, 213 f., 244, 250 f., 253 f., 258, 266, 271, 273, 275 f., 278, 298 f., 301 – 303 Kant 17 f., 20, 31 – 34, 37 – 42, 44, 47 – 55, 57 – 59, 61 – 63, 65 – 78, 81 – 94, 97 – 114, 118 f., 121, 133, 143, 162 – 164, 166, 168, 173 – 186, 190, 192, 204, 206 – 211, 213, 215, 229, 263, 265, 270 f., 274, 276, 281, 297, 300 Kelsen 286 – 289 Kersting 83 Khagram 7 Klein 91 f., 203 Kleingeld 102 Kodalle 66 Kolbert 235

324

Index

Kopenawa 129 – 133, 137, 140, 143, 145, 151 – 153, 238 f. Koselleck 160 f. Krenak 129 – 133, 143, 150 Kymlicka 7 f., 166

Moraes Pinheiro 317 morals 20, 22 f., 39, 81, 83, 108 f., 113, 180, 182, 191 multiculturalism 135 f., 138, 147, 164, 220, 223 f.

Laberge 75 Laschet 68 Lash 7 Latin American 219, 223 Latour 229 law 9 f., 17, 20, 23, 31, 38 – 44, 55, 67, 69, 71 f., 75 f., 82 – 84, 87 – 89, 91, 93 f., 97, 99 f., 103 f., 112, 117, 119 – 124, 140, 144, 158 – 160, 163, 173 – 180, 186, 190 f., 194, 196, 199, 205, 211 f., 233, 237, 263 f., 266, 271, 273, 276, 285 – 292, 296, 298, 302 – 305, 307 Lenton 258 Lévi-Strauss 149 f., 229 – 231, 234 f., 238 f. Levitt 7 Lévy 169 liberalism 9, 118, 174, 263, 274 lifeworld 276 Linklater 265, 267, 274, 276, 280 Little 271 Liu 235 Lo 220, 224 Louden 113 Lucretius 236 f. Lutz-Bachmann 83

Nakhimovsky 118, 121 nation 9, 19, 71 f., 97, 155 f., 158 – 160, 164, 170, 181, 190, 193 – 195, 199 f., 203 – 205, 208 – 211, 213 f., 245, 252, 263 f., 267 – 273, 280 f. nationalism 8, 181, 212, 270, 278 natural right 88 nature 11, 17, 21, 24, 32, 37 – 44, 47 f., 50, 53 – 55, 69 f., 72 – 77, 82 – 84, 86 f., 89 – 94, 97, 106, 110 – 114, 124, 131, 135, 138 – 140, 147, 150, 152, 156, 164, 176, 178, 181, 195, 205 – 210, 212, 229 – 231, 237, 268, 293 f. network 7, 9, 103, 122, 167, 169, 220, 294, 296 Neumayer 252 Niesen 75 Nobre 257 norm 83, 289, 296 – 298, 303 normativism 266, 271 normativity 41, 270 f., 276 – 279, 287 Nour 164 Nye 266

MacCormick 300 Madison 92 Maniglier 130, 133 Marchetti 280 Margulis 239 Marmor 292 Marques 229 Massumi 234 – 236 materialism 185 Maus 89 Mendelssohn 175 Menke 9 migration 34, 197, 203 Mikalsen 90 minority 10, 179, 190, 299 Monod 40

Ochoa 221 f. OECD 257 Orwell 232 Parijs 214 Paris Agreement 243, 246, 255 f. patriotism 92, 264, 266, 269 f., 276 f., 280 peace 31, 33, 37 – 40, 42, 44, 65 – 69, 71 – 78, 81, 83, 85, 87, 91 f., 97 – 100, 113, 118 f., 121, 123, 125, 158, 160, 162, 164, 173 – 175, 177 – 181, 183 f., 186, 192 f., 195 – 197, 200, 203 – 215, 286 Perreau-Saussine 92 Persons 255 perspectivism 129, 132, 134 – 136, 138 f., 145 – 148, 150 Piché 75 Pimenta 18

Index Pitre-Vásquez 221 planet 74, 125, 203, 209, 211, 213 f., 239, 243, 280, 299 political philosophy 84, 162, 185, 204, 206, 208, 210, 212, 214 f., 264, 280, 289, 299 political theory 9, 98, 209, 265 f., 290, 299 Pollmann 9 Portes 7 Posner 250 f. Postema 294 f., 297, 303 – 307 postnational 193 poverty 203, 214, 247, 249, 254, 286 power 10, 23, 29, 32 – 34, 39 f., 54, 61, 69, 71 f., 75 – 77, 81 f., 85, 87, 90, 97 f., 101, 107, 124, 132, 140, 144, 148, 152, 157, 167, 175 f., 183 f., 190 – 200, 203, 205, 207 – 210, 212 – 214, 231 f., 235, 237, 252, 266, 268, 278, 289 – 291, 298, 300 practical philosophy 67 pragmatic 47, 49 – 51, 53 – 55, 57, 60 – 62, 76, 87, 91, 134, 176, 207, 253 pragmatism 53, 60, 63, 159 Prigogine 230 – 232, 235 f. progress 42, 65, 86, 94, 106, 108, 112, 114, 123, 130, 191, 237, 248 prudential reasoning 83 f., 91 public sphere 10, 103, 169, 180, 182 Quijano

277

Racism 8 rainforest 243, 255, 257 Rajão 255 f. Rasmussen 24 rational being 120 Rawls 8 f., 82, 185, 207, 274, 278 Raz 294 – 296, 300 reason 10, 17, 19, 22, 31 – 33, 38 f., 54, 58 – 62, 66, 70 – 74, 76, 78, 82, 85 – 88, 90 f., 94, 98 f., 102, 106 – 108, 111 – 114, 118 – 120, 122, 133, 143, 160 f., 174, 176, 178, 182 – 185, 207 f., 210, 215, 220, 230, 233, 245, 247, 251, 255, 257, 263, 271, 286 f., 293, 298, 300 f., 305 f. recognition 8, 10, 18, 119, 123, 136, 159, 238, 265 f., 270 – 273, 275 – 277, 279, 281, 285 f., 306

325

reform 88, 90, 94, 108, 179, 184, 201, 203, 205 f., 210, 215 reification 281 relativism 35, 135, 138, 146 f., 288 religion 55, 85, 104 Repa 270 responsibility 10 f., 152, 181, 243, 246, 248, 251 – 253, 255, 257, 278, 296 f., 299 – 301, 304, 306 Ribeiro dos Santos 208 Rice 219 Rink 58 Rodríguez-Garavito 7 Rolo 134 Rosa 281 Rosenau 269 Rousseau 70, 84, 86, 108, 300 Sabbatini 117 f. Sagan 239 Salinas 223 f. Santos 7 Saraiva 272 Sassen 7 Savulescu 211 Scheffler 7 Scheuerman 191, 195 – 198, 200 f. Schlegel 176, 178 f., 186 Schmalz 197 Schmitt 34 – 39, 42 Schrödinger 231 science 17, 47 – 53, 56, 60, 85, 219, 223, 226, 230 – 232, 271, 294, 299 shaman 131, 133, 135, 137, 140 – 142, 144 – 148, 150 – 152 Shue 246 f., 250, 252 f. Sigden 306 Silva 267 Singer 7, 246, 248 f. Slomp 36 Smith 7, 17 – 19, 24, 26 f., 29 social contract 38, 88, 206, 212, 264 solidarity 164, 166, 168, 193, 199, 230, 264, 266 f., 269 f., 273, 275 – 279, 281 Souza 274 – 276 sovereignty 9 f., 31, 35, 37, 39 f., 82, 93 f., 132, 143 f., 181, 184, 190, 193 – 196, 199, 211, 224, 264, 270, 272, 275, 285, 291

326

Index

Starke 56 state 7, 9 f., 31 – 33, 35 – 42, 44, 48, 53, 57, 63, 65, 67, 69 – 73, 75 – 77, 81 – 94, 97 – 102, 119, 121 – 123, 125, 140 – 142, 146 – 149, 151, 155 – 166, 168 – 170, 173, 178 f., 181 f., 184 – 186, 189, 191 – 201, 203, 205 – 213, 215, 225, 247, 263 f., 267 – 274, 278, 285 f., 288 – 291, 298 f., 303, 305 Stengers 223, 225 – 227, 230 – 232, 235 f., 238 Straehle 7 f. subject 7, 10, 18, 20, 33, 40, 48, 56, 60, 72, 87, 90, 99, 107, 112, 122, 130 – 132, 136, 139, 142, 145, 150, 155, 159 – 161, 163, 174, 179, 197, 203, 219 f., 230 f., 249, 264, 275 f., 286 f., 295 subsistence 124, 243, 246 f. Suter 7 Taylor 8 technocracy 199 technology 123, 205, 211, 214 theology 39, 105, 109 – 111, 113 f. Thompson 271 Tinnevelt 203, 214 Toeffler 7 translation 8, 100, 118, 129 transnational 8, 10, 160, 164, 166 f., 170, 185, 190, 192 – 195, 197 – 201, 203 f., 224, 264 – 268, 270, 279 – 281 United Nations 174, 177, 179, 181, 183, 186, 190, 192, 203, 205, 210 universal 8, 10, 18, 23, 32, 54, 62, 71, 76, 81, 83 – 85, 87, 97 – 102, 104 – 107, 111 f.,

121, 131, 134, 136, 142 – 144, 150, 164, 168, 175, 178 f., 181, 186, 195 f., 208, 210 – 212, 214, 220, 233, 246, 276, 278, 299 unjust enemy 33 f., 37 – 39, 41 f. Urbinati 197 Urry 7 Valença 275 Valentim 235 Van Hooft 273 Vattel 36, 38, 82 Vich 224 f. violence 8, 21, 70, 85, 87 f., 90 f., 144, 178, 191, 196, 205, 226 Viveiros de Castro 130 f., 133 – 149, 151 f., 229, 235 Vollmer 58 Wade, 222 Wagner 50, 135 f. Waldron 285 f., 294, 302 Wallerstein 7 war 21, 31, 33 – 42, 67, 69, 71 – 76, 82 – 87, 89 – 92, 97 – 99, 123, 135, 141, 143, 146, 174 – 178, 180 – 183, 196, 205 – 210, 213, 215, 233, 278 Watson 264, 274 f., 279 Weisbach 250 f. Widdows 244 f., 252 Wight 274, 276, 279 Williams 38 – 40, 42, 275 f., 278 f., 281 world citizenship 166 world government 98, 177, 189, 192, 195, 197, 200, 208, 211, 213